Makdwski v Robert Habwood and Debbie Hann... [2010] NIIT 7360

THE INDUSTRIAL TRIBUNALS

Case Ref: 7360/09

CLAIMANT: Wojciech Slawdmir Makdwski

RESPONDENTS: Robert Habgood and Debbie Hanney

t/a Simply Good Food

DECISION

The decision of the tribunal is that the respondents have discriminated against the claimant on grounds of his race and the respondents are ordered to pay to the claimant the sum of £13,584.96 in respect of damages for loss of earnings and injury to feelings.

Constitution of Tribunal:

Chairman: Miss E McCaffrey

Members: Mr J Hughes

Mr A Huston

Appearances:

The claimant appeared in person and represented himself.

The respondents had not filed a notice of response and were not represented at the hearing.

The interpreter was Ms Paulina Schmidt.

The Issues

1. The issues for the tribunal to decide were:

(1) whether the respondents had discriminated against the claimant on grounds of his race;

(2) if the claimant was entitled to unpaid wages for a “lying week” and his last week’s work; and

(3) holiday pay which had been accrued while working for the respondent.

2. As a preliminary matter we considered the correct name of the respondent. Correspondence had been received from the respondent referring to the respondents as “Simply Good Food” and an email had been received from them giving their email address as “Simply Good Food Limited.com.” However no firm evidence was adduced to show that the firm was a limited company. On the basis of the claimant’s evidence that Mr Habgood and Ms Hanney traded in partnership, we order that the name of the respondent be amended to show “Robert Habgood and Debbie Hanney trading as Simply Good Food.”

3. On the morning of the hearing, a message was received by email from a representative of the respondents indicating that she had been intending to attend the hearing but was unable to do so because of a migraine. However, having considered the papers, the tribunal noted that no response had been received in relation to this matter, either within the 28 day time limit or at all. Although the respondents had sent in a letter in the middle of March in relation to efforts to resolve the case, no response had been lodged at that stage nor had an application been received to lodge a late response. Accordingly the tribunal decided to proceed with the hearing of the matter.

The Facts

4. The tribunal heard evidence from the claimant and from his colleagues Greg Oscenda, Marlene Susfal and Niall Greer. On the basis of their evidence we make the following findings of facts.

5. The claimant was employed as a lorry driver and dishwasher by the respondents for a period of 10 weeks from 19 July 2009 until 25 September 2009. He is a Polish national. The respondent is a partnership operated by Robert Habgood and Debbie Hanney trading as Simply Good Food. They provide catering for film sets and prepare sandwiches and other food for a catering business. The claimant drove consignments of food to different locations. He also worked in the kitchen and washed dishes.

6. During the period of the claimant’s employment with the respondents the respondents employed eight or nine people. Although the claimant advised that the personnel changed from time to time, he said three were Polish and the rest were local workers. The claimant had a number of complaints against the employer. First of all, he was given no written contract of employment. He regularly had to work a 12 hour day and was told that he could not take time off to take his children to the dentist. He worked on average 60 hours per week. However according to the payslips that he received, he was paid for 40 hours per

week on a PAYE system and paid for extra hours without the earnings being subject to tax and national insurance. He said that he asked about this, but was told that it was better for the employer this way. Mr Greer said he received his pay in a brown envelope without any itemised pay statement.

7. On one occasion he said that he and his colleague wanted to go home but that Rob Habgood told them to wait until Deborah arrived. When she arrived she told them to help unload a van and shouted at the claimant, telling him to get out of the van immediately. In front of everyone she said that he was “stinking.” He replied that his hard work had made him sweat but he was embarrassed and upset at the way that she treated him. Mr Oscenda confirmed this, saying that Deborah had bought the claimant a deodorant and told him to use it. The claimant advised that when he was treated in this way he went to the kitchen and cried, because it was after a long day’s work and he was embarrassed and upset at being treated this way in front of everyone.

8. The claimant advised that when he was working in the kitchen with Greg Oscenda, on a number of occasions Debbie Hanney passed by and heard them speaking Polish. She came in and told them that they were to speak only English although there was no one else in the kitchen at the time. On one occasion the claimant said that he spoke in Polish to someone and Deborah came into the kitchen and said that he spoke Polish “like an old woman.” He believed she would not have said that to a local person. Ms Hanney also told Marlene Susfal, who only worked there for one week, that she was not to use Polish, only English. The claimant advised this was difficult because Ms Susfal did not speak good English and he wanted to explain to her how to do things. Niall Greer confirmed that Debbie Hanney was short tempered, that she shouted and swore at staff in general but he advised that in particular she seemed to be very impatient with Polish workers, did not take time to explain anything to them and called them names.

9. The claimant advised that on one occasion they took food to actors in a field and it was a cold day. Debbie Hanney asked if he was cold. He said that he shivered and then she started laughing and shouted to everyone else, “Look at that, a penguin.” The claimant and Greg Oscenda were unloading large boxes of food off a jeep, the boxes had wheels and when they started to wheel them along the ground, because they were so heavy. Debbie Hanney came and told them to carry the boxes, not to pull them. The claimant said that two of these boxes weighed about 100 kilos each, there were another 8 or 10 which were smaller.

10. On one occasion the claimant noted that his shoes had become damaged while at work and he said to Deborah that he needed another pair of shoes because his shoes had been damaged. She took off one of her own shoes and said to compare the size of their feet, that she had another pair at home. The claimant found this insulting and believed that Ms Hanney would not have offered the shoes to anyone else.

11. On another occasion Ms Hanney told the claimant to clean a refrigerated trailer when he was wearing only a t-shirt and he was the only person sent to clean it. He said that he came out chilled and feeling very cold while it was sunny outside. When she told him to park a lorry in the field, she would tell him where to park it and then when he parked it she told him that he had done it wrongly. On one occasion (and Mr Oscenda confirmed this) she told them to put a table in a particular place and when they did that, she then said that it was too close to the toilets. Mr Oscenda said that on a number of occasions when they had done things as instructed by Ms Hanney, she often said it was done wrongly but then instructed them to do it exactly the same way. Equally she corrected the way that they had made sandwiches.

12. There was another incident where Niall Greer and the claimant were making coffee at the film set. There were two coffee makers which they kept filled up for the actors and crew to help themselves to coffee. However one of the extras had filled a flask for himself from one of the coffee machines and this left them short of coffee. Debbie Hanney shouted at the claimant as to why they didn’t have more coffee and swore at them. Mr Greer explained to the tribunal that the shortage had occurred for reasons that were nothing to do with the claimant, but Ms Hanney still shouted and swore at him.

13. On one occasion when they had a meal break, Ms Hanney said that the claimant and Mr Oscenda had eaten too much food and thereafter she rationed the amount of food that they were given at meal breaks. This did not happen to local workers.

14. On another occasion Rob Habgood received a phone call from Debbie Hanney to say that they had run out of food at the location which was about two miles from the respondents’ premises. Mr Habgood gave the claimant a container with food in it and told him to, “Run it over to Debbie.” The claimant asked about transport to take it over and Mr Habgood said there was no time, that he was to run. The claimant set off to carry the heavy container. He was met by another of the drivers who picked him up and gave him a lift. When he heard later on that day that more food needed to go to be carried over to the site, he said that he hid because he was too tired to carry it. On another occasion he said that one of the local chefs had been asked to take food over but had taken it by car. He said that another chef was asked to carry over a container of food, but another car picked him up and drove him over. The claimant also said that he had been ordered by Rob to “run” with the food whereas he spoke to the other workers in a calm voice.

15. On one occasion the claimant said that Rob Habgood asked him what the Polish word for “dicker” was. The claimant said that it was “kutas” and Rob Habgood then started to say “Wojiech is kutas” and he laughed when he said it. He said this in front of Marlene Susfal. This embarrassed both her and the claimant and the claimant was upset by the incident. Ms Susfal said that Debbie Hanney called the kitchen where they worked “Polish kitchen.”

16. In August 2009 the claimant had a minor accident in one of the respondent’s vehicles when driving back to their premises. The police came and asked him why the lorry had not been MOT’d as it was due to be MOT’d in March and the accident took place in August. Ms Hanney arrived and told the claimant that he was not to worry as she had contacts in the police and would sort the matter out. The claimant however said that sometime later he saw the lorry still in use and he believed it had not been MOT’d.

17. After work the claimant was going shopping with his wife. Shortly afterwards, Ms Hanney phoned and told him to go to her house to collect insurance documents and take them to the police. When he arrived she was not at home. He contacted Rob Habgood who said that he would sort the matter out, the claimant went back to do his shopping and Ms Hanney phoned him, shouting and swearing and asking where he was and telling him that the papers had to be with the police by midnight. The claimant took his wife home and then went to Ms Hanney’s house, collected the papers and went to the police station. This was at 10 o’clock at night and the claimant believed that she would not have treated a local worker in this way.

18. The claimant said that when Ms Hanney came to the kitchen she would say that she “had a present for him” but these would be new tools for scrubbing or sponges.

19. The claimant also advised that he lent Ms Hanney a lorry battery charger which had never been returned to him. When he phone Greg Oscenda about it after he resigned his job Rob Habgood said he still needed it and that the claimant should come and collect it. Because of the way he had been treated the claimant was very reluctant to do this.

20. On 25 September 2009 the claimant had asked for some time off and on the day before reminded his employer that he would be late for work the next day. Rob Habgood asked that the claimant bring the lorry he drove after work to a park in Antrim and that Greg Oscenda would pick him up and take him home. The claimant had advised his employers that he had a medical appointment but he was in fact looking for another job. The next morning he received a text from Deborah Hanney which he said was the final straw. The text from Deborah Hanney was received while he was driving and could not answer. Then he received a further text message from her saying, “Where the duck are you?” The message had been received but he was late. When the claimant arrived at work he asked to speak to Debbie Hanney and was told that she had no time to speak to him. He went to the kitchen and washed all the dishes for two hours. In the meantime he asked the other workers in the company what the message meant and was told it was very bad. He went to look for Debbie Hanney to explain the matter. She was sitting at a table with money in front of her and said she had no

time to talk to him. At that point the claimant felt that he could not stand the way he was being treated anymore, he told her that he had no breaks and she was shouting at him, everything he did seemed to be wrong. He said he wasn’t even allowed to take off time to go home. Ms Hanney’s response was that there were 2.5 million people waiting for a position like his and that he should think about that. At that point the claimant said he was going home. Ms Hanney replied that she had no time to talk to him and if he didn’t come in on Monday he wouldn’t be paid and wouldn’t get his P45.

21. The claimant had worked a lying week at the beginning of his employment and was not paid for his last week’s employment either. He had not been given any details of his holiday entitlement, but had not taken any holidays over the period when he was working for the employer. He had not signed any waiver in relation to the Working Time Regulations and was being obliged to work more than 48 hours per week.

22. The claimant advised that when he left work he had to be treated for stress and provided two sick notes for two weeks each. He said that he had been suffering from insomnia and was on medication for stress. His GP advised him that he should look for other work and that if he was able to find work, he would reduce his medication to enable him to cope with the working environment. From the beginning of November 2009, the claimant was working at an animal feed company. His wages there were £197.00 net and he said the employers were different. Unfortunately that work will cease at the end of May due to the closure of the factory.

23. When working for the respondent, the claimant was paid £6.00 per hour for 40 hours per week. He was paid an extra amount of £1 per hour for driving the lorry. The wages slips which he produced to the tribunal showed that the wages which were being subject to tax and national insurance were £240.00 gross, £202.70 net. According to his wages packet, however he was paid an extra £1.00 per hour for his lorry driving and a further 20 hours (on average) at £7.00 per hour. This additional money was not subject to tax and national insurance.

24. While giving evidence the claimant was visibly distressed on a number of occasions and clearly found the memory of his time working for the employer painful.

The relevant law

25. The relevant law in relation to this case is to be found in Article 6 of the Race Relations (Northern Ireland) Order 1997 which provides as follows:-

“1. It is unlawful for a person, in relation to employment by him at an establishment in Northern Ireland, to discriminate against another -

(a) in the arrangements he makes for the purpose of determining who should be offered that employment; or

(b) in the terms on which he offers that employment; or

(c) by refusing or deliberately omitting to offer him that employment.

2. 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 –

(a) in the terms of employment which he affords him; or

(b) in the way he affords his access to opportunities for promotion, transfer or training or to any other benefits, facilities or services, or by refusing or deliberately omitting to afford him access to them; or

(c) by dismissing him, or subjecting him to any other detriment.

2A It is unlawful for a person, in relation to employment by him at an establishment in Northern Ireland, to subject to harassment a person whom he employs or who has applied to him for employment…..”

26. It is well established that treating someone of a different nationality or racial background less favourably than a local person (or a person of different racial background) would be treated constitutes unlawful discrimination on grounds of race.

“Article 3(A) 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; or

(b) he applies to that other a requirement or condition which he applies or would apply equally to persons not of the same racial group as that other but…….

4A Harassment

(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 (1)(b) 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 regarding as having the effect specified in sub paragraphs (a) and (b) of paragraph (1) only if, having regard to all the circumstances, including in particular the perception of B, it should reasonably be considered as having that effect.”

27. It is well established that in order to establish discrimination on grounds of race the claimant must show that he has been less favourably treated than another person might be treated.

28. It is well established that treating someone of a different nationality or racial background less favourably than a local person (or a person of different racial background) would be treated constitutes unlawful discrimination on grounds of race.

29. The tribunal is conscious of the guidelines set out in the case of Igen and others v Wong [2005] EWCA Civ 142 which make it clear that the claimant must prove a prima facie case of discrimination before the burden of proof moves to the employer to show that there is a “discrimination free” explanation for the events which occurred. We are also conscious that in an undefended case such as this one, we must be satisfied that the facts alleged are proven on a balance of probabilities and we are satisfied that the claimant has been treated less favourably than someone of a different racial background. We are also aware that the discrimination will not always be explicit or obvious, but may be inferred from the proven facts of the case, assuming that there is no other reasonable explanation for the behaviour. We have also taken account of the decision of the Court of Appeal for England and Wales in the case of Laing v Manchester City Council [2006] IRLR 748, where a manager who had “poor management skills” was found not to have been guilty of racially motivated bullying against a black employee: she indiscriminately treated all subordinates in an abrupt fashion.

Decision

30. The decision of the tribunal is that the claimant has been discriminated against on grounds of his race, namely that he was a Polish national. He was subjected to shouting and swearing by Ms Hanney. He was subjected to harassment in the form of name calling by Mr Habgood, who used a derogatory term to the claimant and exacerbated the effect of this by asking the claimant for the relevant Polish expression, and then using it to the claimant in front of another Polish member of staff.

31. We find that the claimant was called a “dicker” by Mr Habgood on a number of occasions. The fact that this was done in Polish exacerbated the humiliation and distress which the claimant felt and we believe this was calculated to be derogatory, particularly as it was done in front of other staff members. We find no doubt that this constituted harassment on grounds of race within the meaning

of Article 4(a) of the Race Relations (Northern Ireland) Order 1997. We also believe that Mr Habgood discriminated against the claimant when he ordered him to run with a heavy container of food a distance of two miles and did not ensure he had transport to take the container, in contrast to the treatment of a local member of staff who was provided with transport in similar circumstances.

32. Mr Greer, who was a local member of staff, indicated that he saw there was a general lack of sympathy displayed by Ms Hanney towards Polish staff. He said she lacked patience in explaining things and he thought that she could have explained things in a better way. He also indicated that Ms Hanney never called the local workers names or anything like that but did do this with the Polish workers. Mr Oscenda was able to bear out the claimant’s account of a number of events when Ms Hanney picked on the claimant, and treated both him and the claimant as workhorses, moving very heavy containers and obliging them to work long hours. He said that when Ms Hanney was angry, she shouted at the claimant most and that he was the scapegoat for everything that went wrong. He confirmed as well that Ms Hanney had refused to allow them to speak Polish in the kitchen.

33. We are satisfied on the evidence that we have heard that the claimant was discriminated against on grounds of his race in the way that he was called names by Ms Hanney, sworn at and abused verbally and obliged to work long hours without a break. We accept that she rationed the food to be eaten by the Polish workers, but did not do this with the local workers. We also believe that her reference to the “Polish kitchen” was racially motivated. We fail to understand why there should be any difficulty in employees speaking Polish amongst themselves, especially when this was done to explain work procedures. Ms Hanney’s prohibition on the claimant speaking Polish at work, when there was no real need at that time for him speak English, constitutes race discrimination action in our view.

34. We have considered whether the way that the claimant was treated in relation to his wages was discrimination on grounds of race. Mr Greer’s evidence to us was that he did not receive an itemised pay statement but simply received a package with his money in it. We cannot therefore make any finding that the claimant has been discriminated against on grounds of his race in this regard. We note however that failure to account for tax and National Insurance on the full amount of the claimant’s wages is illegal, that the claimant was not in a position to argue with the way that the matter had been dealt with by his employers and we direct that a copy of this decision is passed to HMRC for investigation.

35. We also believe that the claimant was refused time off, that he was not given any choice in the hours that he worked and he was not made aware that he was entitled to refuse to work more than 48 hours per week under the Working Time

Regulations. We have no doubt that this contributed to the strain and stress for which the claimant was ultimately treated.

36. It is indicative of the poor working atmosphere at the respondents’ premises that Ms Susfall left after only a week, Mr Oscanda left after 3 months and Mr Greer worked there from mid July until the end of September 2009. Equally the claimant only worked there for 10 weeks. The claimant advised that when he left he did not receive his P45 and was not paid for the lying week and his last week at work.

37. In reaching our conclusions in relation to this matter and on the damages to be awarded, we are mindful of decisions of the Industrial Tribunals in Northern Ireland relating to migrant workers and in particular to the revised Vento guidelines.

38. We are conscious that in recent years there have been a number of incidents where migrant workers have been treated shabbily. It is disgraceful that certain employers take advantage of the vulnerability of migrant workers who may not be familiar with their legal rights in Northern Ireland and may not have a working knowledge of English on their arrival in this country.

39. We are satisfied that the claimant was not paid for two weeks’ employment ( his last week and a lying week and that he is entitled to holiday pay for one weeks holiday which would have accrued while he was working for the respondents. We note that he was out of work for approximately 5 weeks after leaving his employment with the respondent and that he has suffered an ongoing loss. We therefore calculate his loss of earnings as follows:-

Unpaid wages £202.70 per week x 2 weeks = £405.40

Holiday pay 1 week @ £202.70 per week = £202.70

Loss of earnings for 5 weeks £202.70 per week x 5 weeks = £1013.50

On going loss £5.70 per week

25/09/2009 – 29/04/2010

31 weeks @ £5.70 per week = £176.70

£1798.30

40. In light of the fact that the claimant was treated in such a derogatory and humiliating way by his employers, and in light of the revised Vento guidelines we award the sum of £11,000.00 for injury to feelings. This sum carries interest from the date of the discrimination at 8 per cent and so we order the respondent to pay interest from 1 September 2009 until the date of hearing, which we calculate at £786.66. We therefore order the respondents to pay to the claimant the total sum of £13,584.96 by way of damages.

41. This decision is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.

Chairman:

Place and date of hearing: 29 April 2010, Belfast.

Date decision entered in the register and issued to the parties:

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You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Makdwski v Robert Habwood and Debbie Hann... [2010] NIIT 7360_09IT (21 June 2010) URL: http://www.bailii.org/nie/cases/NIIT/2010/7360_09IT.html Cite as: [2010] NIIT 7360_09IT, [2010] NIIT 7360_9IT

Industrial Tribunals Northern Ireland Decisions