Thompson v Luke Delaney George Stobbart Ltd Luke Delaney George Stobbart Ltd [2011] NIFET 00007

FAIR EMPLOYMENT TRIBUNAL

CASE REF: 7/11 FET

240/11

CLAIMANT: Gaukhar Thompson

RESPONDENTS: 1. Luke Delaney

2. George Stobbart Ltd

DECISION

It is the unanimous decision of the Tribunal that the claimant was unfairly dismissed and that she was discriminated against on the grounds of her race, her gender and her religious belief. The Tribunal therefore orders the respondents to pay the following sums to the claimant:-

Discrimination:	£26,109.20

Interest:	£1,218.41

Unfair Dismissal:	£3,475.92

Holiday Pay/Deductions:	£850.83


	£31,654.36

Constitution of Tribunal:

Chairman: Ms W A Crooke

Members: Miss M E Bailey

Mr A Ebrahim

Appearances:

The claimant was represented by Mr T Warnock, Barrister-at-Law, instructed by O’Reilly Stewart Solicitors.

The respondents entered a Response to the claimant’s Claim but did not appear before the Tribunal. Mr G F Wilson was noted on their Response as their representative but by a letter dated 29 June 2011 he came off record. However, the Tribunal noted that Mr Wilson was present in the hearing but took no part in it.

The first respondent was a Director of and shareholder in the second respondent.

SOURCES OF EVIDENCE

1. The claimant gave evidence on her own behalf. The Tribunal had a bundle prepared by her solicitors of relevant correspondence and a subsidiary bundle also prepared by her solicitors that dealt with correspondence between the claimant and the respondents since 29 June 2011.

2. Although the respondents did not appear the Tribunal considered the contents of their response and any other correspondence emanating from them or on their behalf in reaching its decision.

THE CLAIM AND THE DEFENCE

3. The claimant claimed that she had been unfairly dismissed and that she had been discriminated against on the grounds of her race, her gender and her religious belief. The claimant also claimed that she was entitled to receive money in respect of holidays taken prior to her dismissal but for which she was not paid, and a payment in respect of four hours that she worked on 18 October 2010 for which she was not paid. The respondents denied these claims.

THE RELEVANT LAW

4. The relevant law considered by the Tribunal is listed under the following
sub-headings:-

Race Discrimination

Article 3(1A).

Article 3(3).

Article 4A.

Article 5.

Article 62.

All these references are contained in the Race Relations (NI) Order 1997.

RELIGIOUS DISCRIMINATION

5. Article 3(2)(a).

Article 3(2)A.

Article 3(7).

Article 19(1)(b).

Article 36.

Article 38.

6. All references are to the Fair Employment and Treatment (NI) Order 1998.

SEX DISCRIMINATION

7. Article 3.

Article 31.

Article 6a.

Article 8(2)(a).

8. All references are to the Sex Discrimination (NI) 1976 Order.

UNFAIR DISMISSAL

9. The Tribunal considered the following articles which are all contained in The Employment (NI) Order 1996:-

Article 126.

Article 129.

Article 130(1).

Article 130(2).

Article 130(4).

10. The Tribunal also considered the following case law:-

Eweida v British Airways Plc [2009] IRLR78.

UCATT v Brain [1981] IRLR 224.

British Home Stores v Burchell [1980] ICR 303.

Post Office v Foley [2000] IRLR 827.

Grundy (Teddington) UK Ltd v Willis [1976] ICR 323.

Rolls-Royce v Walpole [1980] IRLR 343.

British Leyland UK Ltd v Swift [1981] IRLR 91.

Iceland Frozen Foods Ltd v Jones [1982] IRLR 439.

Rogan v South Eastern Health and Social Care Trust [2009] NICA 47.

Fyfe v Scientific Furnishings Ltd [1989] IRLR 331.

Fitzgerald v University of Canterbury [2004] EWCA CIV 143.

Newman v Polytechnic of Wales Students Union [1995] IRLR 72.

Kirklees Metropolitan Council v Radecki [2009] EWCA CIV 298.

THE BURDEN OF PROOF

11. The Tribunal considered the cases of:-

IGEN v Wong [2005] IRLR 258.

McDonagh and Others v Samuel John Hamilton Thom t/a The Royal Hotel, Dungannon [2007] NICA 3.

Shamoon v Chief Constable of the RUC [2003] IRLR 285.

THE FACTS

12. The claimant was employed by the respondents in Delaney’s Restaurant which at the time of her employment was situated in Lombard Street in Belfast.

13. The claimant commenced employment on 26 January 2009 and her job was to be the restaurant cashier. At the time that she was recruited for this position the restaurant was run by Mr Laurence Delaney and his wife, Mrs Natasha Delaney. Gradually, the claimant started taking on other responsibilities such as informally supervising the staff in the restaurant when Mr and Mrs Delaney were not on the premises. The claimant had a good working relationship with Mr and Mrs Delaney and at the time of her appointment they accepted that she was not able to work on a Sunday as she wished to attend her religious meetings.

14. The claimant has been a Jehovah’s Witness since 1996. The claimant is of Kazakhstan origin. When the claimant started work, the restaurant did not open on a Sunday.

15. In or around June 2010, Mr Luke Delaney, who had formerly been a baker at the restaurant started to take over management responsibility from his father and stepmother. This seemed to be an evolving process and he had full responsibility for the restaurant by August 2010.

16. At no time, in her employment, did the claimant have a written contract of employment or a statement of main terms and conditions but she originally worked 40 hours per week. However, when Mr Luke Delaney took over management of the restaurant in June 2010, her working hours were reduced to 20 hours per week. Although this was supposed to be a temporary measure to address a dip in restaurant custom, this continued until the end of the claimant’s employment with the respondents and gradually the claimant became aware that her hours had been reduced more than those of any other employee. Indeed, a fellow employee called “Katie Zetay”, who was a part-time employee, had her hours raised to make her a
full-time employee. Another employee called “Michelle” was recruited (after the claimant’s hours were reduced) to be a full-time employee in August 2010.

17. The most serious action taken against the claimant was that Mr Luke Delaney replaced her as restaurant cashier with his girlfriend, Ms Lucy Knowles. Not only did Ms Knowles take over the duties of cashier but she also appeared to exercise supervisory/management responsibilities that previously had been exercised by the claimant in that, as we set out in more detail later on in this decision, she authorised the claimant to go to the rest room in the premises and also co-signed a letter with Mr Luke Delaney, in which she was described as “management”.

18. Pressure was put on the claimant to work on Sundays and this was particularly noticeable on 25 October 2010 when the claimant was told by text message that her working hours for that week would include four hours on a Sunday, running from 12.00 noon to 4.00 pm. The claimant explained that she was unable to attend as her religious meeting at her Kingdom Hall only finished at 12.00 noon on the Sunday. Mr Luke Delaney made it clear that she was not going to be able to simply change her hours on a Sunday for another shift. Either she took those hours or she would lose four hours pay in that week. The claimant also felt that if she did work that shift then those would be her hours for the rest of her employment with the respondent. Although Ms Lucy Knowles is a Protestant (on the claimant’s evidence), she and other employees did not have the difficulty the claimant faced in working on a Sunday.

19. The claimant also alleged that she suffered discrimination on the grounds of her gender and two incidents led her to believe this. The first event took place on 12 October 2010, when the claimant was publicly questioned by Mr Luke Delaney in front of staff and customers on her need to use the rest room in the restaurant. This was not something that happened to male staff and it was only when the claimant explained that her need to use the rest room arose from a “ladies’ issue” that Ms Lucy Knowles stepped in and authorised the claimant to go to the rest room.

The second event took place on 23 October 2010. The claimant was supposed to work on 23 October 2010 in the restaurant but Mr Luke Delaney had cancelled her hours for that day. She decided to come in to collect her wages for that week and when she attended at the restaurant she was told by Mr Luke Delaney that he had no money to pay her wages and that she was to leave and not to return to the restaurant without his permission. Mr Luke Delaney also enquired with the claimant about training that she was undergoing with MBT (another company). The Tribunal noted that another member of staff had been attending training one day a week for the previous six months without any objection being raised by Mr Luke Delaney and when the claimant reminded him of this he effectively told her it was none of her business. It transpired that this was training that the claimant was undertaking on a speculative basis without a guarantee of employment at this stage, but Mr Luke Delaney did not accept this explanation from the claimant. The claimant texted Mrs Natasha Delaney and explained that she thought that she had been dismissed. Mrs Natasha Delaney looked into this matter and the next communication the claimant received from Mr Luke Delaney was a list of hours to be worked in week commencing 25 October 2010. When the claimant left the restaurant on 23 October 2010 she was dismayed to note that Mr Luke Delaney followed her out into the street. Not only did he accuse her of actually working for MBT when all she was doing was undertaking some training but also he warned her to be very careful about what she said to his father when the claimant indicated that she would take up the issue with Mr Laurence Delaney. It is notable that this exchange was contentious and took place in the street which was at the time busy as it was Saturday afternoon and that Mr Luke Delaney raised his voice. The claimant felt embarrassed and humiliated by the way she was spoken to in the street by Mr Luke Delaney. The claimant asked was Mr Luke Delaney threatening her and he told her that if she came back to the restaurant without his permission he would call the Police as she was harassing him. The claimant asked him whether he could validly feel harassed by her as she was a girl. Mr Luke Delaney turned on the claimant and said “you’re no girl”. This made the claimant feel very upset and she started to wonder whether there was something about her that made people see her as masculine. The claimant described clearly her feelings of hurt, embarrassment and humiliation at this exchange. Not only did Mr Luke Delaney not believe the claimant’s explanation that she was undertaking training with MBT but he demanded a receipt from her for the training. When she told him that no receipt would be provided he told her that if that was the case she would be in even more trouble.

20. When Ms Lucy Knowles took over the claimant’s position, the claimant was demoted to work on the hot food counter and Mr Luke Delaney told her after one day finding her in the kitchen getting a glass of water, that she was not to move from this position without his consent. No other employee in the restaurant was subject to such a restriction. The Tribunal also noted from the claimant’s evidence that Mr Delaney had a practice of questioning the claimant’s English. He would ask her if she could spell certain words. He would also ask her if she knew the meaning of certain words. This led the claimant to feel deeply concerned about her interactions with the general public and indeed anybody in addition to Mr Luke Delaney. She said that she was caused to feel that if he could not understand her, perhaps other people also were in this position. This led her to start to speak more slowly in an attempt to address this perceived problem emanating from the treatment she received from Mr Luke Delaney. No one else was treated in this fashion by Mr Luke Delaney. While most of the employees at the time of the events described were local the claimant pointed out that not only were they not treated like this, but also Katie Zetay, who was originally of Albanian origin, but who having lived in Northern Ireland for 10 years was regarded as being “local” by Mr Luke Delaney, also was not treated in this fashion by Mr Delaney.

21. On 26 October 2010, the claimant arrived at the restaurant, as she thought, to start her shift. Mr Luke Delaney said that he was going to call the Police to remove her from the restaurant as she had returned without his permission. The claimant held her ground and the Police duly arrived. In their presence, although Mr Luke Delaney said she was not dismissed when the claimant asked about this, he told her that she was to go away and not to come back to the restaurant. The claimant regarded this as the effective date of termination of her employment and the Tribunal also regards this as a clear dismissal of the claimant. Certainly she was never paid since that date although she provided the respondents with a sickness self-certification certificate when the respondents attempted to summon her to an alleged disciplinary hearing which only came up after the claimant had submitted a number of grievance letters to the respondents about the various aspects of her treatment by Mr Luke Delaney. In the various items of correspondence, the respondents tried to present the claimant as a person who had been difficult and aggressive with the customers of the restaurant. The claimant had no knowledge of the alleged prior disciplinary action taken against her by the respondents on this ground. The respondents tried to argue that the claimant was removed as cashier for her behaviour to customers and as such the respondent felt that she would be better off in a role that was not “front of house”. The claimant was not aware of this, she was not warned and certainly received no complaints from customers. If Mr Luke Delaney was genuinely trying to remove the claimant from a front of house role, the Tribunal finds it is very strange that the claimant was put on the hot food counter which was almost the first point of contact that the restaurant staff had with the general public. The Tribunal simply does not believe the respondents’ version of events and finds that it was an excuse concocted to try to deflect the claimant’s criticism set out in her grievance letters.

22. The claimant made it clear to the respondents that she was not able through illness, to attend the disciplinary hearing on 29 October 2010. She subsequently submitted a month’s sick line from her doctor. When that expired, there was no attempt by the respondents to reactivate the alleged disciplinary proceedings.

23. There was an “attempt” by the respondents’ accountant, Mr Val McGovern, to investigate the claimant’s grievances but no hearing was held and no appeal allowed from the determination of Mr McGovern (which only upheld the claimant’s grievances in respect of the rest room incident). The Tribunal finds that the reason why the statutory grievance and dismissal procedures were not followed in this case in respect of the unfair dismissal of the claimant and in respect of the dealing with her grievances was the fault of the respondents, and uplifts the relevant heads of the award by 50% pursuant to Article 17 of The Employment (Northern Ireland) Order 2003, due to the disgraceful way the claimant was treated in the conduct of her grievance by the respondents and Mr McGovern.

CONCLUSIONS

The Discrimination Claims

24. Race Discrimination

The Tribunal finds that the claimant was less favourably treated on the grounds of her race and has regarded Ms Lucy Knowles as an actual comparator in respect of this treatment. Effectively, the most important part of the treatment of the claimant was her replacement as cashier/supervisor by Ms Lucy Knowles. The claimant was effectively demoted without any chance to object. The claimant had her hours reduced more than other members of staff. Indeed when Katie Zetay was promoted to full-time working and Michelle was recruited to work full-time and the claimant asked about receiving back her hours, Mr Luke Delaney asked her if she knew what “demotion” meant. We have already made findings about the effect that Mr Luke Delaney’s attacks on the claimant’s use and knowledge of English had upon her. We have noted that he did not do this to anybody else in the restaurant and have noted that the claimant was the only foreign worker in his employment at that time. Although Katie Zetay was of Albanian origin she was the holder of a British passport (to the best of the claimant’s knowledge) and as she had lived in Northern Ireland for 10 years, she appeared to pass as a local person. Given that the claimant was the only person who suffered these attacks from Mr Luke Delaney and was of a different nationality to the rest of the workers or rather was not as the claimant phrased it “local”, the Tribunal also constructs a hypothetical comparator in respect of this aspect of her treatment. The claimant was less favourably treated on the grounds of her race and the Tribunal considers that the hypothetical comparator was a person working in the restaurant and the only difference in that person’s situation was that that person was of a different race to the claimant. The claimant’s evidence shows that none of the “locals” were treated like this. Therefore, we consider the claimant has established in this aspect of her claim such primary facts from which the Tribunal draws the inference that this behaviour was on the grounds of the claimant’s race. The Tribunal finds support for this conclusion in the manner in which the response of the respondents was completed by them or on their behalf in that on the last page of the response, there was a request that an interpreter be appointed for the hearing as the claimant might not speak fluent English. This is entirely consistent with the attacks on the quality of the claimant’s English that the claimant suffered from Mr Luke Delaney.

RELIGIOUS DISCRIMINATION

25. The Tribunal also finds that the claimant has established sufficient primary facts from which an inference of indirect discrimination on the grounds of her religion can validly be drawn by the Tribunal. The claimant is a Jehovah’s Witness and needed to attend her meeting on Sunday morning from 10.00 am until 12.00 noon. This was recognised by Mr and Mrs Laurence Delaney at the start of the claimant’s employment and it was only when Mr Luke Delaney took over that difficulties started to arise. There were other persons in his employment who could have covered the restaurant shift on a Sunday without any difficulty. The claimant was prepared to work occasionally on a Sunday afternoon but could not undertake the shift from 12.00 noon to 4.00 pm as her meeting on Sunday ran to 12.00 noon. Neither do we believe the assertion by the respondent that they tried to accommodate her religious worship because her meeting was allegedly changed to a Saturday. The claimant confirmed that her meeting was never changed to a Saturday and in any case she was still being required to work on Saturday and Sunday by Mr Luke Delaney. Clearly the requirement for the claimant to work on a Sunday which commenced on or about 25 October 2010 was an attempt to apply a provision, criterion or practice which would put persons of the same religious belief as the claimant at a particular disadvantage when compared with other persons. As there were other workers who could have covered this shift the Tribunal does not consider that this could be regarded as a proportionate means to achieve a legitimate aim. The Tribunal finds that there was coercion and intimidation by Mr Luke Delaney of the claimant. She was told to accept the hours on Sunday or she would have to work reduced hours. The Tribunal finds that the claimant has proved sufficient facts from which the Tribunal can draw the inference that the reason for the claimant’s treatment was her religion.

SEX DISCRIMINATION/HARASSMENT

26. As the claimant was the only person who had to ask permission to use the rest room and there were other workers who were male and female, the Tribunal does not consider that of itself the rest room incident is necessarily indicative of sex discrimination being perpetrated against the claimant. However, when it is taken in conjunction with the comment that the claimant was “not a girl” the Tribunal does consider that a climate of intimidating hostile, degrading, humiliating and offensive conditions was being created in the workplace for the claimant. Certainly, there was no evidence that any other employees were insulted or humiliated in the fashion in which the claimant was treated by Mr Luke Delaney. The Tribunal considers that taking the two matters together it is proper to consider the claimant was being harassed.

27. The Tribunal has also considered the effect that this tripartite attack of race, religious and sex discrimination by Mr Luke Delaney had on the claimant. The claimant suffered physical and mental symptoms. She felt sick to her stomach and suffered headaches. It was noticeable that when she came out of the workplace environment her physical symptoms largely subsided after about a month, but, the mental damage caused by Mr Luke Delaney lasted longer. The claimant felt hurt, embarrassed, upset and humiliated. She was afraid to go into work as she did not know what would happen next. She suffered impaired concentration. She could not for example sit down to read a book because the events of the latter part of her employment with Mr Luke Delaney crowded in on her. Most tellingly, she gave evidence that for a long time after her employment ceased she kept scanning the faces of people she met in the street lest she would encounter Mr Luke Delaney or indeed any of his family members. She also suffered disturbed sleep.

28. In summary, the claimant felt she was being attacked on all sides and Mr Warnock submitted powerfully that an attack under the three headings was a fundamental attack on who the claimant was and as such should be regarded seriously by the Tribunal. The Tribunal finds that the discrimination under all three headings taken together was a concerted attack - a campaign against the claimant by Mr Luke Delaney. We find that the burden of proof by reason of this concerted attack passes to the respondents to prove that the treatment suffered by the claimant was in no sense an account of the prohibited grounds (here race, sex and religion).

They have not discharged this burden in that they have not proved that they did not commit the acts or are not to be treated as having committed that act.

Accordingly, the Tribunal awards the claimant £17,000.00 as damages for the injury to feelings that she has suffered as a result of the three types of discrimination.

THE UNFAIR DISMISSAL CLAIM

29. In any unfair dismissal case it is for the employer to show the reason for the dismissal and that it was a reason which fell within Article 130(2) of the 1996 Order. The Tribunal does not consider that the respondents have discharged this burden of proof. They even denied the claimant was dismissed. Having found the claimant was dismissed clearly and directly by Mr Luke Delaney, the Tribunal does not consider that the respondents have fulfilled the requirements of paragraph 1 of Article 130. The reason for the dismissal was not proved by the respondents. Furthermore, the Tribunal does not consider that the respondent has acted within the range of reasonable responses which was the test set out in the case of Iceland Frozen Foods Ltd v Jones. The Tribunal considers that the alleged disciplinary history of the claimant was something that was cobbled together by the respondents in a further attempt to confuse, degrade and humiliate the claimant. There certainly seemed to be no proper and real investigation of the alleged disciplinary offences so the respondents certainly did not bring themselves within the tests set down in British Home Stores v Burchell for dismissal for misconduct and as such the Tribunal does not consider that the respondents’ treatment of the claimant can be regarded as being within the band of reasonable responses.

30. The Tribunal also declares that the claimant is entitled to receive a payment for the holiday of three weeks agreed earlier in the holiday year with Mrs Natasha Delaney, but which was not paid by Mr Luke Delaney after the claimant returned at the start of October 2010. The Tribunal also confirms that the claimant was entitled to receive four hours net wages for the four hours worked for which she was not paid on 18 October 2010.

CALCULATION OF COMPENSATION, RACE, RELIGIOUS AND SEX DISCRIMINATION

31. £17,000.00 is awarded for injury to feelings.

Interest is also awarded thereon. The Tribunal considers that as the treatment of the claimant ran over a 17 week period starting in or around mid-August 2010 and finishing with the unsatisfactory procedures operated by the respondents’ accountant, Mr Val McGovern, in or around 16 December 2010. The Tribunal is entitled to award interest from the midpoint in that period which is from 14 October 2010 to 5 September 2011 (the date of hearing) at the rate of 8%. This is a period of 327 days and the calculation is as follows:-

£17,000 x 8% ÷ 365 x 327 = £1,218.41.

UNFAIR DISMISSAL

BASIC AWARD

32. There were no benefits received by the claimant so recoupment does not arise.

CALCULATION OF BASIC AWARD

33. The claimant’s average gross weekly wage was £130.00 at the time of her dismissal and being aged 34 years with one completed year of service falling within the 22 to 40 years bracket the multiplier on this information is one, hence 130 x 1 x 1 = £130.

34. The claimant had a loss of wages from 26 October 2010 to 5 September 2011 being the date of hearing which was a period of 44 complete weeks at her average net weekly wage of £126.60 per week and that is a sum of £5,570.40.

35. The claimant successfully mitigated her loss by obtaining a job with MBT and we set out a schedule of earnings received by the claimant from October 2010 to August 2011 as follows:-

October 2010:	£176.50

November 2010:	£172.80

December 2010:	£115.20

January 2011:	£86.40

February 2011:	Nil

March 2011:	Nil

April 2011:	£360.00

May 2011:	£513.00

June 2011:	£576.00

July 2011:	£690.00		£5,570.40

August 2011:	£899.88		£3,589.78


Total:	£3,589.78	Net Immediate Loss =	£1,980.62

FUTURE LOSS

36. The claimant’s representative calculated her net weekly wage from MBT based on the last three monthly wage slips divided by 13 as being £166.61. As £126.60 seemed to be the net weekly wage the claimant was receiving at the time of her dismissal no question of future loss arises.

LOSS OF STATUTORY RIGHTS

37. The claimant will have to accrue the right not to be unfairly dismissed all over again with her new employer and as such the Tribunal awards the sum of £250.00.

SUB TOTAL

38. Unfair Dismissal Compensation

Basic Award:	£130.00

Net Immediate Loss:	£1,980.62

Loss of Statutory Rights:	£250.00

Uplift of 50% on Compensatory Award:	£1,115.30


Total Unfair Dismissal Compensation:	£3,475.92

39. Holiday Pay Claim and Deduction from Wages

The Tribunal also awards the claimant her three weeks holiday pay calculated as follows:-

32 hours x 6.50 x 3:	£624.00

Less Tax:	£82.14	£541.86

+ four hours’ net wages:	£25.36


Total:		£567.22

Uplifted by 50%:		£283.61


		£850.83

40. Summary of Compensation

For Discrimination		For Unfair Dismissal			For Holiday Pay and Deductions

	£17,000.00		£130.00			£541.86

Uplift of 50%:	£9,109.20		£1,980.62			£25.36

	£1,218.41		£250.00
						£567.22
			£1,115.30
	£27,327.61			Uplift of 50%:		£283.61

			£3,475.92
						£850.83

	Total Award

	£27,327.61

	£3,475.92

	£850.83


	£31,654.36

41. This is a relevant decision for the purposes of the Fair Employment Tribunal (Interest) Order (Northern Ireland) 1995.

Chairman:

Date and place of hearing: 5 September 2011, Belfast.

Date decision recorded in register and issued to parties:

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Fair Employment Tribunal Northern Ireland Decisions