XY v Rainbow Garland Limited Michelle Dougan Bryan West [2013] NIIT 391

THE INDUSTRIAL TRIBUNALS

CASE REF: 391/13

CLAIMANT: XY

RESPONDENTS: 1. Rainbow Garland Limited

2. Michelle Dougan

3. Bryan West

DECISION

The unanimous decision of the tribunal is:-

1. That the correct title of the first named respondent is Rainbow Garland Limited.

2. That an order should be made under Rule 49 of the tribunal’s Rules of Procedure so that any matter which is likely to lead to the identification of the claimant should be omitted from the Register and from this decision. A restricted reporting order under Rule 50 was in force in this case prior to the issue of this decision.

3. That the first respondent is hereby ordered to pay to the claimant the sum of £658.80 in respect of outstanding holiday pay.

4. That the claimant was harassed by Bryan West, a director of the first respondent, on the grounds of his sexual orientation and was also subjected to discrimination on grounds of sexual orientation.

5. The first respondent is hereby ordered to pay to the claimant compensation in respect of that harassment in the sum of £15,000.00. In addition, Bryan West is hereby ordered personally to pay to the claimant compensation in the sum of £5,000.00 in respect of his harassment of the claimant in the course of his employment.

Constitution of Tribunal:

Chairman: Ms J Turkington

Members: Mr A Crawford

Mr B Collins

Appearances:

The claimant appeared and represented himself at the hearing.

None of the respondents had lodged response forms and none of the respondents appeared at the hearing.

The Claims

The claimant brought the following claims before the tribunal:-

1. A claim for pay in lieu of holidays accrued but not taken at the date of termination of the claimant’s contract of employment.

2. A claim in respect of alleged discrimination and harassment on the grounds of the claimant’s sexual orientation by the first respondent through its director/employee Bryan West.

The Issues

The issues to be determined by the tribunal were:-

3. Whether, as requested by the claimant, and since this case involved allegations of the commission of a sexual offence, an order should be made pursuant to Rule 49 of the tribunal’s Rules of Procedure whereby any matter which is likely to lead to the identification of the claimant by members of the public should be omitted from the Register and from the tribunal’s decision.

4. Whether any of the claims were out of time and, if so, whether time for the lodging of such claims should be extended.

5. Whether the claimant had accrued holidays which were accrued but not taken at the date of termination of his contract and, if so, the amount of pay in lieu of such holidays due to the claimant.

6. Whether the claimant was subjected to harassment on the grounds of his sexual orientation in the course of his employment.

Disposal of the claim in the absence of the respondents

7. The respondents did not appear at the hearing. Neither the respondent company nor its directors had presented a response form and, in accordance with rule 9 of the Industrial Tribunal Rules of Procedure, none of the respondents were therefore entitled to take any part in the proceedings at the hearing. The tribunal was satisfied that the Claim Form and Notice of Hearing were duly sent to all 3 respondents at addresses at Upper Newtownards Road and Alfred Street, Belfast respectively and none of this correspondence was returned undelivered via the post. The tribunal was satisfied on the basis of the claimant’s evidence that the second and third respondents visited these addresses on a regular basis. Accordingly, the tribunal concluded that the respondents were aware of these proceedings and the hearing and the tribunal therefore decided that it was appropriate to proceed to hear the claim in the absence of all of the respondents.

Sources of Evidence

8. The tribunal heard oral evidence from the claimant and from Michael Brown on his behalf and considered a number of documents submitted by the claimant.

Facts of the Case

Having considered the claim form submitted by the claimant, and having heard the evidence of the claimant and his witness and considered the documents submitted by the claimant, the tribunal found the following relevant facts:-

9. The claimant was approached by Mr Bryan West, a director of the first respondent, with a view to taking up employment in the first respondent’s new restaurant business in Botanic Avenue, Belfast. The claimant attended for an interview at another of Mr West’s businesses and was then offered a senior position with the first respondent.

10. The claimant’s employment commenced on or about 1 July 2012 when the restaurant was getting ready to open. Initially, the claimant was involved with painting and cleaning the restaurant premises to get the business ready for opening. The claimant never received a statement of main terms and conditions of employment.

11. The claimant’s rate of pay was £9.00 per hour (gross). The claimant did receive pay slips.

12. The restaurant was a lesbian, gay, bi-sexual, transgender (LGBT) themed restaurant.

13. On numerous occasions, Michelle Dougan and Bryan West, the second and third respondents were at the restaurant drinking. Mr West continually called the claimant who is homosexual a “stupid poof”. This term almost came to be a nickname used by Mr West for the claimant. Mr West frequently used this term in respect of the claimant in front of other staff and customers of the restaurant. Mr West also called the claimant a “faggot”. The claimant tried to address his concerns with Ms Dougan, but she did nothing to assist.

14. One night around the end of July 2012, Mr West together with Ms Dougan were having dinner in the restaurant together and they were joined by other guests at their table. They all ordered food. The claimant as a senior member of staff went over to the table to pay attention to these important guests. The area around the table was cramped. As the claimant was coming back from the table, Mr West approached to pass the claimant in this confined space. The claimant ducked out of the way to let him pass. Mr West had been drinking heavily. When he was close to the claimant, Mr West made a comment about the “bulge” in the claimant’s trousers and he then assaulted the claimant by groping him in the groin area. As the claimant put it in his evidence, Mr West “had a good feel”.

15. The claimant was extremely upset by this assault, but because he had his hands full of plates, he was unable to do anything to defend himself. He told Mr West to stop it, but the claimant then had to leave to take the dishes into the kitchen. The claimant was almost in shock. He went straight to talk to the Bar Manager who observed his distress and took the claimant outside immediately.

16. Despite being very upset and shocked, the claimant carried on with the rest of his shift, although he did not return to serve Mr West’s table that evening.

17. The claimant felt that he had no alternative but to continue to work at the first respondent’s restaurant because he had no other job to go to.

18. After the incident of the assault, Mr West continued to call the claimant by offensive names. However, he never touched the claimant again.

19. In the middle of October 2012, a meeting was called of the first respondent’s senior staff. The claimant came into the business on his day off at the request of Ms Dougan. When he arrived, Mr West was sitting at the bar with the company accountant. The claimant did not know what the meeting was about. Ms Dougan indicated that they were ready for the meeting to commence upstairs. Mr West pointed at the claimant and said “No. I don’t want him there, he’s nothing but a stupid poof”. By contrast, the Bar Manager, another senior member of staff was allowed to go upstairs to attend the meeting. The Bar Manager is not homosexual.

20. The claimant remained downstairs. He was concerned for his job as he was aware that the restaurant was not making as much money as when it first opened. Following the meeting, the claimant learned that the accountant had said that the first respondent had to cut its costs. The claimant confronted Ms Dougan. He asked her why he had been left out of the meeting. Ms Dougan replied with words to the effect of “You know what Bryan’s like. Once he takes a notion about someone”. The claimant asked if there were any concerns about how he did his job or his performance. Ms Dougan clarified that there were no such concerns, but the claimant was facing a cut in either his hours or his wages.

21. At that stage, the claimant started looking for another job. He left his employment with the first respondent on 31 October 2012 and returned to his previous employer. The claimant received his final pay and his P45 approximately one week after the end of his employment, but he did not receive any holiday pay.

22. During the tribunal hearing, it was clear that the manner in which the claimant had been treated had a devastating effect on him. He had dreaded going to work knowing that Mr West was likely to be there and fearing that, at worst, there was the potential that he might get drunk and assault the claimant again.

23. The claimant did not receive any paid holidays during the course of his employment. The claimant worked a total of 679.5 hours during his employment. The claimant wrote to Ms Dougan of the first respondent on 7 January 2013 to formally request payment of his holiday pay. On receipt of this letter, Mr Brown witnessed Mr West saying that the claimant was “not …ing getting it (ie the holiday pay) the stupid poof”.

24. The claim form was lodged with the tribunal office on 4 February 2013.

Statement of Law

25. Under Regulation 13 of the Working Time Regulations (as amended), a worker is entitled to a total of 5.6 weeks paid leave (pro rata) in any leave year. By Regulation 14, where a worker’s employment is terminated during the course of his leave year and on the termination date, the proportion of leave which he has taken is less that the proportion of the leave year which has expired, the employer must make a payment in lieu of leave accrued but not taken.

26. By regulation 30, a complaint must be presented to a tribunal within a period of 3 months beginning on the date when payment of holiday pay should have been made.

27. By article 41 of the Employment Equality (Sexual Orientation) Regulations (Northern Ireland) 2003 (“the Regulations”), a complaint must be presented within 3 months of the last act where a series of acts are complained of. The tribunal may extend the time for lodging a complaint where it is just and equitable to do so.

28. Under article 5 of the Regulations, harassment on the grounds of sexual orientation is defined as follows:-

“(1) For the purposes of these Regulations, a person (“A”) subjects another person (“B”) to harassment where, on grounds of sexual orientation, 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 paragraph (1)(a) or (b) only if, having regard to all the circumstances, including in particular the perception of B, it should reasonably be considered as having that effect.”

29. By Regulation 3 of the Regulations, it is unlawful for an employer to treat an employee less favourably on the grounds of the employee’s sexual orientation.

30. By regulation 24 of the Regulations,

“(1) Anything done by a person in the course of his employment shall be treated for the purposes of these Regulations as done by his employer as well as by him, whether or not it was done with the employer’s knowledge or approval.”

31. Where a tribunal finds a complaint under the Regulations to be well-founded, it shall order the respondent to pay compensation to the claimant in respect of the claimant’s injury to feelings. Compensation for injury to feelings is to be determined in accordance with the Vento guidance. Compensation for injury to feelings is to be determined in accordance with the guidance set out in the case of Vento v Chief Constable of West Yorkshire Police 2003 IRLR 102 CA. The Court of Appeal stated:-

“(i) The top band should normally be between £15,000 and £25,000. Sums in this range should be awarded in the most serious cases, such as where there has been a lengthy campaign of discriminatory harassment on the ground of sex or race. This case falls within that band. Only in the most exceptional case should an award of compensation for injury to feelings exceed £25,000.

(ii) The middle band of between £5,000 and £15,000 should be used for serious cases, which do not merit an award in the highest band.

(iii) Awards of between £500 and £5,000 are appropriate for less serious cases, such as where the act of discrimination is an isolated or one off occurrence. In general, awards of less than £500 are to be avoided altogether, as they risk being regarded as so low as not to be a proper recognition of injury to feelings.

There is, of course, within each band considerable flexibility, allowing tribunals to fix what is considered to be fair, reasonable and just compensation in the particular circumstances of the case.”

The sums set out above have now been up-dated to allow for inflation since the Vento case was decided.

Conclusions

Holiday pay

32. The tribunal first had to determine whether or not the claim in respect of holiday pay was out of time. The claimant’s employment ended on 31 October 2012. Holiday pay should have been paid in the claimant’s final pay which was paid to him approximately 1 week after the end of his employment, that is around 7 November. That being the case, when the claim form was lodged on 4 February 2013, it was in time and the tribunal therefore does have jurisdiction to hear this claim.

33. Since he had not received any paid holiday during the course of his employment, the claimant was entitled to 5.6 weeks paid holiday (pro rata) on termination of his employment on 31 October 2012. Over the course of his employment, the claimant worked a total of 679.5 hours. He worked a total of 17 weeks. The claimant’s average working hours per week is therefore 679.5/17 = 40 hours per week.

34. The claimant’s entitlement to holiday pay is calculated as follows:-

5.6 weeks x 40 (average hours per week) x 17 weeks/52 = 73.2 hours.

Holiday pay = 73.2 hours x £9.00 per hour (gross) = £658.80 (gross).

Time limits

35. The claimant’s employment with the first respondent ended on 31 October 2012. It is therefore clear that any harassment against him ceased at that date. The claim form was lodged a few days outside the time limit of 3 months under Regulation 24. The tribunal has a broad discretion to extend the time for lodging a complaint on the grounds that it is just and equitable to do so. In this case, the tribunal was satisfied that there could be no prejudice to any of the respondents arising from the claim form being lodged only a few days late. The claimant was unrepresented and was not familiar with the time limits for lodging this type of claim. In all the circumstances, the tribunal had no hesitation in extending the time limit for the claim to be lodged to 4 February 2013. Accordingly, the tribunal determined that it did have jurisdiction to hear the claimant’s claims of harassment and discrimination on the grounds of his sexual orientation.

Harassment on the grounds of sexual orientation

36. The tribunal was shocked by the claimant’s evidence as to the treatment afforded to him by Mr West. The tribunal found as a fact that Mr West frequently and continually referred to the claimant as “a stupid poof”, often in front of other staff and customers of the restaurant. This language was particularly humiliating since the claimant held a senior position with the first respondent’s business and due to the linking of the adjective “stupid” to the pejorative term used in respect of the claimant’s sexual orientation. Since this offensive language is so clearly based on the claimant’s sexual orientation, the tribunal did not need to enquire any further as to whether this treatment was on the unlawful ground of the claimant’s sexual orientation.

37. The tribunal was particularly shocked and appalled that the claimant had been subjected to a sexual assault in the workplace. This was a very frightening and distressing experience for the claimant which no one should ever have to face in their workplace.

38. The tribunal had no hesitation in concluding that the claimant was subject to a campaign of behaviour on the grounds of his sexual orientation which clearly had the effect of creating for him an environment at work which was degrading, humiliating and offensive. The tribunal had no doubt that the assault by Mr West was connected to the claimant’s sexual orientation. The tribunal therefore determined that the claimant was subjected to a campaign of serious harassment on the grounds of his sexual orientation.

39. Since Mr West was at the time a Director of the first respondent and effectively in control of the company along with Ms Dougan, the tribunal had no difficulty in determining in accordance with regulation 24 of the Regulations that the first respondent is responsible for the unlawful actions of Mr West.

Discrimination on the grounds of sexual orientation

40. In the course of his evidence, the claimant referred to the example of the meeting upstairs in the restaurant as an instance when he considered he had been treated less favourably on the grounds of his sexual orientation. The tribunal was satisfied that, in view of his senior position, the claimant would in the normal course have been invited to such a meeting. The Bar Manager, whose role was at a comparable level to that of the claimant, was permitted to attend the meeting. When indicating that the claimant was not to be permitted to attend the meeting, Mr West referred to the claimant in very derogatory terms as “a stupid poof”. In the circumstances, it was very clear to the tribunal that the claimant, a senior employee, was being excluded from participation in this business discussion effectively because of his sexual orientation. It was also clear that the claimant was prevented from putting forward his views in relation to business issues. The outcome of the meeting was that the claimant’s hours or wages would have to be reduced in order to save costs. There was no such expectation in respect of the Bar Manager.

41. The tribunal therefore had no difficulty in concluding that the claimant was subjected to less favourable treatment on the grounds of his sexual orientation.

Compensation for injury to feelings

42. Having determined that the claimant had been subjected to both harassment on the grounds of his sexual orientation and less favourable treatment on the same grounds, the tribunal had to decide on the appropriate compensation to be awarded to the claimant for his injury to feelings. Generally, the tribunal was shocked and appalled at the consistent campaign of humiliation and harassment to which the claimant had been subjected during his employment. The claimant was subject to offensive comments and behaviour on a daily basis during his employment. In particular, the claimant was subject to a serious sexual assault in the workplace which was a gross invasion of his personal integrity and privacy.

43. It was clear during the tribunal hearing that the claimant remained extremely and visibly upset, embarrassed and humiliated by the treatment which he had suffered, often in front of colleagues and customers of the restaurant. The claimant felt very degraded as a senior employee to have been continually denigrated as “stupid”.

44. In determining the appropriate level of compensation for injury to feelings, the tribunal considered that the claimant had been subjected to a campaign of discrimination and harassment, including a serious sexual assault such as would justify an overall award of compensation within the top Vento band. Accordingly, the tribunal concluded that the appropriate overall award would be £20,000.00.

45. In this case, all the acts of harassment and discrimination were carried out by Mr West. It was clear that Mr West held a significant position of power with the first respondent, being effectively the joint owner of the business. The campaign of harassment conducted by Mr West therefore represented a very serious abuse of power. In view of these facts, the tribunal considered that Mr West personally should bear a significant portion of the overall compensation. The tribunal considers the appropriate apportionment to be £5,000.00 to be paid by Mr West personally.

46. The tribunal considered whether any compensation should be paid by Ms Dougan. When approached by the claimant with his concerns about Mr West’s treatment of him, Ms Dougan simply brushed off those concerns and did nothing to address them. The tribunal considered that Ms Dougan’s response fell far short of the standard to be expected of a person in a position of responsibility in the modern work-place when faced with the scenario which arose in this case. However, since there was no evidence before the tribunal that she had actually participated in the harassment herself, the tribunal did not consider it appropriate to order her to pay personally any portion of the compensation to be awarded to the claimant.

47. Accordingly, the compensation to be paid by the first respondent to the claimant is £15,000.00.

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

Chairman:

Date and place of hearing: 25 June 2013, Belfast.

Date decision recorded in register and issued to parties:

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	Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> XY v Rainbow Garland Limited Michelle Dougan Bryan West [2013] NIIT 391_13IT (16 August 2013) URL: http://www.bailii.org/nie/cases/NIIT/2013/391_13IT.html Cite as: [2013] NIIT 391_13IT

Industrial Tribunals Northern Ireland Decisions

Disposal of the claim in the absence of the respondents