Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF: 583/15

 

 

CLAIMANT: Martin Stastny

 

 

RESPONDENT: MDF Engineering Ltd

 

 

DECISION

The unanimous decision of the tribunal is that:-

 

A

 

(1) The claimant was not automatically unfairly constructively dismissed, pursuant to Article 135A of the Employment Rights (Northern Ireland) Order 1996. Further, the tribunal did not have jurisdiction to consider any claim of 'ordinary unfair constructive dismissal.

 

(2) The claimant was not discriminated against on the grounds of his race, pursuant to the Race Relations (Northern Ireland) Order 1977.

 

(3) The claimant did not suffer any unauthorised deduction from his wages in contravention of Article 45 of the Employment Rights (Northern Ireland) Order 1996.

 

(4) The claimant did not suffer any detriment pursuant to Regulations 23 - 24 of the National Minimum Wage Act 1998.

 

(5) For the avoidance of any doubt, the claimant's claim, pursuant to the Equal Pay Act 1970, is dismissed, upon withdrawal.

 

B

 

The claimant's claims are therefore dismissed.

 

Constitution of Tribunal:

Employment Judge: Employment Judge Drennan QC

Members: Ms N Wright

Mr B Heaney

Appearances:

The claimant was represented by Mr R Vilkovic; both of whom were assisted by Ms M Michalikova and, subsequently, Ms I Kovacova, interpreters.

The respondent was represented by Mrs L Sheridan, of Peninsula Business Services Ltd.

 

1.1 The claimant presented a claim to the tribunal on 5 March 2015, in which he made a claim of unfair constructive dismissal, race discrimination and equal pay. The respondent presented a response to the tribunal on 27 April 2015, in which it denied liability for the claimant's said claims.

 

1.2 In accordance with the normal case-management procedures, at a Case Management Discussion on 2 June 2015, as set out in the Record of Proceedings dated 2 June 2015, it was noted by the Vice President, without objection, that a claim of equal pay was not appropriate in the circumstances. For the avoidance of any doubt, the claimant's claim, pursuant to the Equal Pay Act 1970 is therefore dismissed, upon such withdrawal.

 

As set out in the record, following discussion, the parties then agreed that the issues before the tribunal were as follows:-

 

"(i) Whether the claimant was unlawfully discriminated against by the respondent on grounds of race/nationality in relation to pay, bonuses, work allocation, the conduct of disciplinary procedures and the provision of translation assistance?

 

(ii) Whether the claimant was constructively and unfairly dismissed from his employment contrary to the Employment Rights (Northern Ireland) Order 1996?"

 

In addition, the tribunal made various case-management orders in relation to replies to interlocutory notices and preparation and exchange of witness statements.

 

1.3 At the commencement of this hearing, it became apparent there had been failures by the claimant to comply with the said case-management orders, which failures had not been brought to the tribunal's attention by the respondent's representative prior to the hearing. Following discussion, it was agreed, and the tribunal so ordered, the hearing would be adjourned 'overnight' to enable the claimant to provide to the respondent his witness statement, together with all relevant documents to be relied upon by the claimant and which required to be included in the trial bundle, already prepared by the respondent. The claimant's representative further acknowledged, during the course of discussion, that the claimant did not have the necessary qualifying period of one year's continuous employment ending with the effective date of termination to enable the claimant to bring a claim of 'ordinary' unfair dismissal, pursuant to Article 126 of the Employment Rights (Northern Ireland) Order 1996 ('the 1996 Order') (see later).

 

1.4 On the resumption of the hearing, after the claimant had complied with the orders set out in the previous sub-paragraph, it became apparent, during further discussion, the claimant was seeking to make various other claims based on an alleged failure by the respondent to pay the claimant sums due to him in accordance with the National Minimum Wage Act ('the 1998 Act').

 

Under Rule 10(2)(q) of the Industrial Tribunals Rules of Procedure 2005 ('Rules of Procedure') the tribunal has a discretion to grant leave to a claimant, upon application, to amend his claim. Following the respondent's representative obtaining relevant instructions, it was agreed, and the tribunal so ordered, that the claimant would have leave to amend his claim, and it was so amended, to include the following additional claims, arising out of the respondent's alleged failure to pay the claimant the relevant National Minimum Wage, pursuant to the 1998 Act, namely:-

 

"(i) Whether the claimant suffered any unauthorised deduction from his wages, in contravention of Article 45 of the Employment Rights (Northern Ireland) Order 1996.

 

(ii) Whether the claimant suffered any detriment pursuant to Regulations 23 - 24 of the National Minimum Wage Act 1998.

 

(iii) Whether the claimant was unfairly dismissed, pursuant to Article 135A of the Employment Rights (Northern Ireland) Order 1996."

 

The respondent's representative orally confirmed that the respondent disputed the said amended claims and it was agreed the respondent's response was so amended to reflect same; but without the necessity to further amend the respondent's response, in writing, to enable the hearing to proceed, without the necessity for a lengthy adjournment of the proceedings.

 

In light of the foregoing, it became apparent that the witness statements already prepared and exchanged by the claimant and the respondent (see before) would require further amendment and/or a further witness would be required to be called by the respondent and who had not previously prepared and exchanged any witness statement. In the circumstances, and having regard to the terms of the overriding objective, it was agreed, and the tribunal so ordered, that evidence would be given orally by the witnesses of the parties, with any witness referring, as appropriate, if he/she wished to do so in the course of such oral evidence, any witness statement already prepared and exchanged, in accordance with the tribunal's previous orders, referred to above.

 

1.5 During the course of the evidence of a witness of the respondent, Ms Jane Millar, reference was made by her to correspondence previously received by the respondent from HM Revenue & Customs, prior to the hearing of this matter.

 

Following the hearing, as agreed, the said correspondence was sent to the Office of the Tribunals and copied to the claimant's representative. The parties were invited to make any further submissions, in relation to the said correspondence, but declined to do so. In the absence of any further submissions, the tribunal, following notification to the representatives of the parties, admitted the said correspondence in evidence; on the basis that it would give it such weight as it considered necessary in the circumstances for the determination of the claimant's said claims (see later).

 

1.6 In light of the foregoing and the amendments to the said claims of the claimant, as shall be noted later, a claim pursuant to Article 135A of the 1996 Order does not require the said qualifying period of employment of one year, it was agreed the tribunal had jurisdiction to hear and determine the claimant's said amended claim, pursuant to the said Article, of unfair dismissal.

 

1.7 For the purposes of the 1996 Order and the 1998 Act, where relevant, it was not disputed the claimant was not only an employee of the respondent but also a worker for the purposes of the said legislation. It was further not disputed, for the purpose of the claimant's claim, pursuant to the Race Relations (Northern Ireland) Order 1997 ('the 1997 Order') the claimant was of Czech nationality and that, if the respondent discriminated against the claimant, as alleged, the respondent was vicariously liable for the acts of any such employee of the respondent, which were done in the course of his/her employment.

 

2.1 The tribunal heard evidence from the claimant; and also evidence, on behalf of the respondent, from Mr Kevin Doherty, Ms Jane Millar and Mr Enda Quinn. Having considered the evidence given to the tribunal by the parties, as set out above, the documents contained in the trial bundle, as amended, to which the tribunal was referred during the course of the hearing, together with the oral submissions by the representatives of the parties at the conclusion of the hearing, the tribunal made the following findings of fact, insofar as relevant and necessary for the determination of the claimant's claims, as amended, as set out in the following sub-paragraphs.

 

2.2 The claimant is from the Czech Republic. He has lived and worked in Northern Ireland doing various jobs, including welding, for approximately 10 years. His wife is also from the Czech Republic. His adult daughter lives in Northern Ireland and she has a good standard of English and, on occasion, she has assisted her father in translating documents/dealing with correspondence received by him, including from the respondent. The claimant insisted, during the course of his evidence, that his level of English was basic. The tribunal is satisfied that, although there was some limitation, it was not as great as he tried to suggest during the course of his evidence to the tribunal. Indeed, in a curriculum vitae, produced for the claimant, by his daughter, when he was still working for the respondent, by his daughter, the tribunal noted that it was stated:-

 

" ... I've an intermediate level of English but I am currently working to improve my English with a private tutor ... ."

 

The curriculum vitae also noted the claimant had:-

 

" ... 20 years' experience in welding; had ability to read technical drawings; metal assembly/fabrication is also a field which I have experienced; I also hold a valid EU welding licence; experience with all kinds of metal."

 

In other CV type correspondence, the claimant also stated:-

 

"I would also say that my ability to read/understand European technical drawings would be 10; but since I've been in the UK I have noted that some companies use a different format in which I would say my ability would be 7/8 ... ."

 

In particular, the tribunal was satisfied the claimant, at all times material to these proceedings, was able, with his level of English, to carry out his daily work tasks, as given to him and was at all times able to communicate in a satisfactory manner with his supervisors and fellow employees in English, as necessary and without any particular difficulty.

 

2.3 The respondent employs approximately 196 employees, of whom about 34 are office/clerical staff. Most are from Northern Ireland but there are also a number of employees from countries including, in particular, Poland, Lithuania and Slovakia. Frequently the respondent employs agency staff to fill relevant shortages in its workforce and, if suitable, the respondent often then considers employing any agency staff as employees after such employees have provided 13 weeks' employment, as agency workers. The claimant initially commenced employment with the respondent to carry out welding work as an agency worker, supplied by an agency with whom the respondent had a contract. As part of that work, as an agency worker, the claimant carried out all necessary welding work, which included some limited re-work, sometimes referred to, during these proceedings, as repair work (see later). Such re-work/repair work would normally be done mainly by permanent employees, not agency workers, as such work normally requires a higher level of skill and experience. Generally, agency workers in their first 13 weeks of employment are being assessed by the respondent to see if they would be suitable for transfer to permanent employment status and this is better assessed doing production welding work, in contrast to re-work/repair work. The respondent's work includes, in particular, the making of components for HGV trailers, which are then sent to another company, in Northern Ireland, within the Group, of which the respondent is a member, for necessary assembly.

 

2.4 The claimant's work as an agency worker was assessed to be satisfactory and he was interviewed in or about early December 2014 for a permanent position as an employee of the respondent to do welding work. All production line employees, including welders, are known as operatives.

 

The interview, which the tribunal is satisfied was short and somewhat of a formality, as the respondent had already assessed the claimant as suitable for permanent employment in his period of 13 weeks' agency employment, was conducted by Kevin Doherty, the production manager. Following this successful interview, which it is believed was probably on 8 December 2014, the claimant was given by David McKee, his night supervisor, a copy of the standard contract of the respondent for him to sign. Before actually signing the contract the claimant commenced his employment on the night shift. The contract of employment was already dated 8 December 2014 and signed by Ms J Millar, the Group HR Manager.

 

The said written contract of employment, insofar as relevant and material to these proceedings, stated:-

 

"Job Title : Operative

 

Remuneration :

 

Your wage is currently £6.00 per hour which includes a £20.00 timekeeping bonus payable weekly in arrears by BACS transfer, as detailed on your pay statement. If you work in excess of 40 hours a week (Monday - Friday) you will be paid at overtime at the rate of time and a half."

 

2.5 The tribunal is satisfied that, after commencing his said employment but before signing the said contract, after some two weeks approximately, the claimant had a further interview/meeting with Mr Doherty. At that meeting, it was explained to him that all welders are known as operatives; but, Mr Doherty agreed to insert against job title 'Operative/Welder', as the claimant clearly felt it very important for it to be noted that, as such a production line employee, his work was that of a welder. Indeed, the tribunal noted his status as an experienced welder was a clearly a matter of particular importance to him and he wished to make it clear it was for that work he had been so employed by the respondent and that this should be recognised on the contract itself. In light of these concerns, and for completeness, Mr Doherty added the word 'welder' to the job title.

 

Mr Doherty also noted under remuneration 'plus £1.50 per hour shift allowance'. The tribunal was given no proper explanation why this was not already inserted on the standard contract, which it found most unsatisfactory. However, regardless of same, the tribunal accepts it was paid to the claimant as required and necessary and indeed to all other employees; and the payment of the said allowance was not a matter relevant to the issues, the subject-matter of these proceedings; and, in particular, the issues relating to the National Minimum Wage.

 

In addition, Mr Doherty also inserted onto the contract of employment under remuneration:-

 

"Bonus?"

 

At the bottom of the said contract:-

 

"All is normal."

 

The tribunal is satisfied that, during the course of this further meeting, and which gave rise to the said insertion in relation to bonus, the claimant specifically raised with Mr Doherty that there was no reference in the contract to the production bonus, based on his performance, which was payable by the respondent to production operatives, such as the claimant, who did welding work. Knowledge of such bonus would have been well known to the claimant from his time as an agency worker. The tribunal is satisfied that it was in this context that the said word 'bonus?' was written on the contract. Mr Doherty fully explained to the claimant how this production bonus worked and, depending on the precise amount of bonus paid, based on his performance, his actual rate of pay would therefore be considerably more than the £6.00 per hour, as stated on the contract. The claimant, understandably in the circumstances, was clearly worried, having studied the contract in detail, that the only reference in the written contract was to the £6.00 per hour and there was no reference to the said production bonus, which he knew should be payable to him by the respondent. The tribunal, in these circumstances, can fully understand his enquiry. Indeed, as recognised by Ms Millar in the course of her evidence, the fact that this was a standard contract was not a relevant reason for the said omission of any reference to the bonus payable; and in the contract, she further accepted, there should have been an appropriate reference to the payment of the said production bonus. The tribunal accepts Mr Doherty's evidence that, as far as he could recall, the claimant, at this meeting, did not expressly make reference to the National Minimum Wage; but rather, in terms, raised the issue that, 'surely, I should be getting more than £6.00 per hour, as set out in the contract, given I am entitled to a production bonus'. Having fully explained the above to the claimant, the tribunal is satisfied the claimant did not dispute the explanation by Mr Doherty that he would be entitled to the production bonus as a welder, which he would receive in addition to the £6.00 per hour basic, as referred to above. In light of this, Mr Doherty wrote on the contract 'all is normal'. The tribunal is satisfied that the claimant was not objecting to the system of bonus or even the rate of bonus; but, was merely ensuring that it would be paid to him, given the absence of any express reference to same in the standard contract.

 

The tribunal is satisfied that this production bonus was paid by the respondent, when earned, by all the welders employed by the respondent of whatever nationality and was also paid at the same rate to all such welders; and that all such employees got this standard contract, without the specific reference to the production bonus (see later).

 

Given that re-work/repair work was always part of the work of a welder, who was a permanent employee of the respondent, which would have been well-known to the claimant, and that Mr Doherty had signed off the contract 'all is normal', the tribunal does not accept there was any discussion or issue raised by the claimant at the meeting about carrying out such re-work/repair work; and, in particular, it does not accept that the claimant stipulated, as he alleged, in evidence, that he would not do such work. If this issue had arisen, it is inevitable that Mr Doherty would have had to discuss it with other senior members of management, including Mr Quinn, the General Manager, as this would have raised issues about the claimant's continuing employment. In the circumstances, this did not occur. The tribunal is satisfied the respondent would not normally have allowed a welder to be 'excused' from such duties, given that they were part of the duties of all welders and no exception could have been made, except by specific agreement, in particular circumstances, and which would have had to have been noted, in particular, on the contract. Indeed, the fact that Mr Doherty noted 'all is normal' confirmed that there was no such specific agreement whereby the claimant was not required to do such re-work/repair work.

 

2.6 The claimant, with his contract of employment, was also given a copy of the Company Handbook. Like all other employees carrying out welding work and as confirmed in the purchase records produced, the claimant was given all necessary tools to carry out his work and when he commenced as an agency worker, appropriate induction training. Indeed, given his satisfactory work as an agency worker, and the decision to offer him a permanent contract, the tribunal is satisfied that any further induction training was limited, as was the initial interview with Mr Doherty, as referred to previously. The claimant retained the equipment/tools he had been given as an agency worker on becoming a permanent employee and as set out in the relevant records further equipment was re-issued to him, as required, following his change from agency worker to permanent employee during the course of his said employment. The tribunal considers that if there had been any significant failure to provide tools to the claimant and it was a real and significant issue during the period of the claimant's employment, as subsequently claimed in these proceedings by the claimant following his resignation, this would have prevented him doing his work and would have been noted, as appropriate, on his production records as the reason for any inability to do his work which would have, in turn, affected his performance related bonus. There was no evidence in the said records to suggest that this was ever an issue in the course of his employment. There may, on occasion, have been a temporary/short term absence of a particular piece of equipment but any that was required was obtained or, if necessary, lent to overcome any particular problem. Further, there was no relevant evidence to support the claimant's contention that, if any such shortage of equipment did occur, on occasion, this related in any way to his race/ nationality.

 

2.7 In essence, the production bonus payable by the respondent was the same, whether calculated against production welding work (ie new work) or calculated against re-work/repair work. This re-work/repair work arose during the normal production process due to the mistake of others - but to remedy the mistake was a very important task for a worker on the night shift to enable production to be maintained. With production welding work (new work), each beam to be worked upon, for example, was given an allocated time to carry out the work, which time would have been well-known to the employees, as much of it would be 'repeat work'. If the employee met the target on each said beam, he would get a 50% bonus; so, if, for example, the allocated time to carry out work on a particular beam was four hours, and this was achieved, then the employee got an extra two hours by way of bonus. However, re-work/repair work, although paid at the same rate, in contrast to production welding work, there was no allocated time to do the work; with the consequence, there required to be a relevant calculation to be carried out by the supervisor from the production records at the end of the week, where such work had been done. Given the calculation to be done in relation to such re-work/repair work, the amount of bonus would not be readily apparent to the welder from the production records signed off by the welder when the work was completed; in contrast to production welding work, where the allocated/target times was known and a calculation of the bonus was therefore readily apparent to the welder. The respondent therefore paid a production bonus for whatever type of work was required to be carried out, calculated as set out above. The amount of re-work/repair work would vary from day-to-day, depending on the circumstances and would be allocated by the supervisors as the need arose; but there was always a requirement to do both production welding work and re-work/repair work. No employee would be required to do only re-work/repair work. Indeed, the tribunal accepted Mr Doherty's evidence that to do 10% work, as re-work/repair work, would be a long week of such work. Significantly, some welders; and the tribunal is satisfied this was particularly relevant in the case of the claimant, given his considerable experience as a welder, did not like carrying out re-work/repair work; as it was felt to be arguably less satisfying work for an experienced worker, re-cutting and re-doing another person's mistakes. However, crucially, in monetary terms, the tribunal is satisfied, if the re-work/repair work was done correctly and accurately recorded in the production records by the welder, then the relevant bonus for doing such work was paid. Significantly, in relation to such re-work/repair work, the requirement was to do the work and complete it but there was no allocated time in which it had to be done in order to obtain the bonus. The claimant, on most occasions, filled in the production records for the work done by him and also the other welder, P, with whom he normally worked on the night shift.

 

2.8 The tribunal is satisfied, from examination of relevant records, that the claimant was paid the relevant bonus for all the re-work/repair work and/or production welding work that he did. Further, it was also apparent from the relevant records, taking into account the production bonus paid to him each week, whether for production welding work and/or re-work/repair work, at all times relevant to these proceedings, the claimant was paid at a rate which satisfied the National Minimum Wage, after taking into account the said production bonus, which was required to be done for the purposes of the said legislation (see later).

 

The tribunal has no doubt, given his experience, the claimant was particularly good at such re-work/repair work; but equally, as set out previously, he did not like doing it when it was allocated to him, as it was part of his duties, as it involved re-doing someone else's mistakes which he neither enjoyed and, in the tribunal's judgment, he did not believe it was the type of work which should have to be done by such an experienced welder. However, contrary to his view, such work was part of his duties on the night shift and essential for the production process.

 

2.9 The tribunal is satisfied, having examined the production records, the claimant did both re-work/repair work, as required, as part of his duties but also production welding work, despite his contentions in evidence to the contrary. The claimant sought to compare himself with two employees, B and S from Northern Ireland, on the night shift. The tribunal is satisfied that both B and S also did re-work/repair work and production welding work; but, due to their specific skill set and greater versatility, in comparison to the claimant, were often assigned to do production welding work in other departments, some of which, due to the nature of the work, it was not in fact possible to earn as much production bonus as could be earned by the claimant, for example, doing his production work on the beams. In such circumstances when called to do work in other departments, B and S would probably not have done as much re-work/repair work as the claimant, but much would depend upon the particular production requirements at the time. B and S were a longstanding team with a good working relationship and, given their greater skill set and versatility, the respondent did not wish to break the team up, by substituting the claimant, as it would have affected the ability to satisfy production requirements on the night shift, which were not just in the claimant's department.

 

2.10 On 29 January 2015, the claimant was involved in an incident involving his night shift supervisor, Mr McKee, who was the claimant's supervisor and line manager at all material times to these proceedings after he became a permanent employee, following his agency work. At all times the claimant's work was of a good standard, which, indeed, had been the principal reason why he was accepted as a permanent employee at the end of the 13 week period of agency work.

 

On 29 January 2015 there were a set of beams which needed re-work. The claimant, who was working with his partner, P, who is Slovak, as usual, had set this re-work to the side. Things are done in order of the schedule and Mr McKee told the claimant and P this beam required to be re-worked, as it was required for the morning shift. Both P and the claimant continued to work on other equipment and did not carry out Mr McKee's instructions. It seems that P was willing to do the work on the beam but the claimant was not. Rather the claimant became very aggressive, raised his voice and refused to do the work. Mr McKee repeated his instruction but the claimant removed his overalls and stopped work altogether. Mr McKee explained he wished him to remain in work but the claimant became even more aggressive and said Mr McKee was discriminating against him. Mr McKee told him that he was leaving the premises without authorisation and could be up for a disciplinary hearing. The claimant then told Mr McKee:-

 

"To go and **** himself."

 

2.11 By letter dated 4 February 2015, Mr Doherty wrote to the claimant inviting him to attend a disciplinary hearing on 9 February 2015 to consider the following matters of concern:-

 

" ... On Thursday 29 ^th of January 2015 you refused to carry out a reasonable management request and left the premises at 8.00 pm without permission."

 

The letter included a copy of the respondent's disciplinary Rules of Procedure, and informed him that he could be accompanied by a fellow employee of his choice. In the letter he was reminded 'that a failure to follow a reasonable management instruction may be deemed to be gross misconduct, the penalty for which could lead to the summary termination of your employment'.

 

2.12 The disciplinary hearing on 9 February 2015 was conducted by Mr Quinn, the General Manager, and was very unsatisfactory, as set out in the memo by Mr Quinn to Ms Millar, immediately following the hearing, which the tribunal is satisfied is an accurate, albeit not verbatim, record of what took place at the meeting:-

 

"Just had a disciplinary with Martin Stastny for leaving the factory without permission.

 

He left at 8.00 pm on a night shift and David McKee (supervisor) told him he didn't have permission to leave.

 

His English is average so communication was an issue, but his attitude was brutal, by far the worse attitude I have encountered in a disciplinary.

 

At the start of the conversation he asked if we would pay for a translator for the hearing, I suggested using P (who was present at the last meeting and communicated/translated very well) but Martin said he was not of the same language.

 

He accepted the fact that he was wrong to leave at 8.00 pm but started going on about bonus payments. I told him to speak to Kevin if he had an issue with his bonus payments but this was a separate issue to the disciplinary.

 

He kept saying he only earns £85/£100/£120 when people on day shift are earning £200.

 

I told him to write his issues down and give them to his supervisor to pass to Kevin.

 

During the hearing, I phoned Kevin to ask if there was any reason why Martin earned less bonus than anyone else, Kevin said he got paid for every job he did.

 

He then started to get very aggressive, and told me to 'shut my mouth'. I questioned him on this and he said he started to shout and got off his seat. Not to sound like a damsel in distress but I actually thought he would a go for me, such was his aggression.

 

He made comment to the expression on my face (which changed only when he told me to shut my mouth) implying I didn't think he was a good enough worker because of where he was from.

 

Then he walked out the door and told me he was going to the special office as I was discriminating against him. I have taken a lot of disciplinarys in the past and take pride in how I deliver myself. But this was as league of its own!!!"

 

The tribunal has no doubt that, although P was Slovak, and with whom the claimant had worked alongside for some time, completing his production records for him, and, given Slovak is very similar to Czech language, the claimant deliberately suggested, to cause difficulty for Mr Quinn, that it was not the same language. The tribunal noted the claimant, in the course of these tribunal proceedings, displayed, on at least one occasion, considerable anger which was not explicable, in the judgment of the tribunal, simply because of the pressures of tribunal proceedings. It confirmed to the tribunal the terms set out by Mr Quinn in his memo as to the attitude of the claimant but also his earlier outburst to Mr McKee, his supervisor, on 29 January 2015, which had given rise to the disciplinary hearing, were true.

 

2.13 On 20 February 2015, Mr Quinn wrote again to the claimant inviting him to a further meeting on 23 February 2015, stating:-

 

" ...

 

When you commenced employment with MDF Engineering Ltd on 18 ^th of August 2014 in the capacity of operator with MDF Engineering you were informed that your performance would be subject to ongoing review.

 

The company has a number of concerns with your performance in the above role and wishes to discuss these with you at a formal meeting. To this end you are required to attend a review meeting on Monday 23 ^rd of February at 4.00 pm to discuss these issues as follows:

 

·          Leaving without permission on Thursday 29 ^th of January after refusing reasonable management request

 

·          Poor attitude towards supervisor

 

·          Gross subordination during disciplinary hearing held on Monday 9 ^th of February 2015

 

You have the right to be accompanied by a fellow employee and should you wish to exercise those rights then, it is your responsibility to make the arrangements. I have to advise you that the possible outcome following this meeting includes termination of employment, extension of your probationary period or in some cases the offer of alternative employment.

 

It is important that you attend this meeting but if you do not do so without good reason, I have to inform you that I will hold the meeting in your absence and make a decision based on the evidence available to me which could lead to the termination of your employment with the company. It is therefore very much in your own interest to attend. Furthermore, I feel it is also fair to advise you that a failure to attend will be viewed as a breach of a reasonable management instruction which may be added to the matters of concern already under consideration and may be deemed to be gross misconduct, the penalty for which could lead to the summary termination of your employment.

 

... ."

 

At this meeting held on 23 February 2015, Mr Quinn allowed the claimant's representatives in these proceedings, Mr Vilkovic, although not a fellow employee, to attend as interpreter. In particular, in the course of the hearing, the claimant was asked if he accepted he had told his supervisor, Mr McKee, to '**** off'. He said he did. He was also asked if he admitted telling Mr Quinn 'to shut your mouth' at the previous disciplinary hearing. Again he said yes.

 

Significantly, the claimant then added he felt he had been asked to do an unfair amount of re-work. He was told by Mr Quinn if he felt strongly about this he should have contacted management and not walked out of the factory. There was no evidence that the claimant had been allocated an unfair amount of re-work/repair work by the management, such as Mr McKee or Mr Doherty - but there was clear evidence the claimant did not want to do such work.

 

2.14 The claimant then, following this meeting with Mr Quinn, sent a letter of resignation, dated 2 March 2015. In the letter the claimant stated:-

 

" ... I'm writing you this letter as confirmation to why I have not been attending work recently. From the very beginning of my employment I have felt discriminated against, which has made me feel uneasy and under pressure in my workplace.

 

Whenever I started employment within the company I did not receive all the correct tools for me to complete my duty, lucky as I am a certified welder and have lots of experience, I did have some of my own personal tools to use. As an experienced welder I was expecting a wage suited for the profession. When I was working for the company my wages were minimum but I had OTE of a higher wage as long as I had good timekeeping etc etc. With my timekeeping being fine, I kept enquiring about my low pay and not receiving any bonus and I was always told by supervisor that it was raised with the production manager but this had ill effect.

 

The Slovak colleague and I seemed to receive less than other workers for our bonuses even if our output was the same or of greater quantity. Whilst aware of the value of having a job, I proceeded to ask 'why foreigners do not receive the same bonus as local workers?'.

 

Recently I had disciplinary proceedings and due to my limited understanding of English I had requested a translator and you did not provide one. Without a translator I would not have been fully able to understand everything that was going on, as you would also not be able to receive responses from myself. I did attend a meeting with you, being represented by a friend of mine with a better understanding of English so that he could translate for me. But after a phone call to check if you were alright to proceed with the meeting, you were very reluctant to give information or to question.

 

In consideration of all mentioned above, I would like you to consider this my resignation letter. As not all going concerns were properly addressed nor was I given the chance to formally explain myself, I'll be contacting the Equality Commission. I would also like to have my tools returned to me as well as any outstanding money owed.

 

... ."

 

By letter dated 26 March 2015, Ms Millar wrote to the claimant, inviting him to re-consider his resignation and to raise a formal grievance; but, despite the invitation, he failed to do so.

 

3.1 The tribunal, initially, had considerable concern whether the claimant was paid the National Minimum Wage to which he was entitled, largely due to the unsatisfactory way in which the remuneration terms of the claimant's contract were set out, as referred to previously. Indeed, Ms Millar, during the course of her evidence, recognised that the standard contract term required to be looked at by the respondent in future to ensure greater clarity, although recognising that it can be difficult, due to the complexity of the National Minimum Wage Regulations and the differences between the various departments of the respondent, to find appropriate wording. However, the tribunal has no doubt, as confirmed by HM Revenue & Customs, as referred to below, that the present standard contract is likely to lead to some confusion and indeed, as set out previously, resulted in the clarification sought by the claimant in his second meeting with Mr Doherty in order to clarify the position in relation to the payment of the bonus. In particular, the tribunal was concerned that there was no reference in the claimant's contract to the bonus, based on performance related pay, paid to the claimant and which payment, pursuant to the Regulations, is included in the calculation of the National Minimum Wage. By way of contrast, the timekeeping bonus is not included in the National Minimum Wage calculation as it is not performance related pay.

 

The tribunal has no doubt that, if there had been greater clarity on these matters in the documents provided by the respondent to the claimant, some of the issues, which arose during the course of these proceedings could have been more easily resolved by the parties, without the necessity for tribunal proceedings.

 

3.2 As set out previously, the tribunal is satisfied that, at all times material to these proceedings, the claimant was paid the National Minimum Wage, after taking into account the performance related bonus payment included by the respondent in the said calculation.

 

The tribunal was confirmed in this conclusion, after considering the correspondence received by the respondent from HM Revenue & Customs after the audit inspection by HM Revenue & Customs in or about the Autumn 2015. This involved a complete review of all relevant records, including, in particular, how the production bonus/ performance related bonus payment was consolidated into the wages paid by the respondent to employees, including welders, such as the claimant.

 

Following the said audit, the compliance officer of HM Revenue & Customs stated, in correspondence, dated 10 December 2015, to the respondent:-

 

"I have now completed my review of your wages records. I can confirm that based on the information/records provided to me during my inspection, workers employed by your company have been paid at or above the National Minimum Wage. It was noted that some workers plain time rate was based on an hourly rate which was below the National Minimum Wage. When the production bonus, which was consolidated into workers' overtime rate and holiday pay and can therefore but [sic] used to calculated workers' National Minimum Wage pay, was included with workers' basic pay this brought their pay to above the National Minimum Wage ... ."

 

In further correspondence dated 10 December 2015, the compliance officer, also stated:-

 

" ... It was noted that a number of your workers are in receipt of an hourly rate of pay which is below the National Minimum Wage. It was also noted that workers are in receipt of a production bonus which is liable of NMW purposes and brings the workers' hourly rate of pay above the NMW. I would recommend that you increase workers' basic hourly rate to equate to the National Minimum Wage to avoid possible confusion among workers whom they believe they are not being paid correctly."

 

4. Relevant legislation

 

4.1 Race Relations (Northern Ireland) Order 1997 ('the 1997 Order')

 

Article 3(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."

 

Article 5(1) -

 

"Subject to paragraphs (2) and (3), in this Order:-

 

'racial grounds' means any of the following grounds, namely colour, race, nationality or ethnic or national origins."

 

Article 6(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 him 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."

 

Article 52A - Burden of proof

 

" ...

 

Where on the hearing of the complaint, the complainant proves facts upon 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 ... against the complainant;

 

(b) is by virtue of Article 32 or 33 to be treated as having committed such an act of discrimination ... against the complainant;

 

the tribunal shall uphold the complaint unless the respondent proves that he did not commit, as the case may be, is not to be treated as having committed that act."

 

4.2 Employment Rights (Northern Ireland) Order 1996 ('the 1996 Order')

 

Article 135A -

 

" (1) An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that:-

 

(a) any action that was taken or proposed to be taken, by or on behalf of the employee with a view of enforcing, or otherwise securing the benefit of, a right of the employees to which this Article applies; or

 

... ."

 

(c) the employee qualifies, or will or might qualify, for the National Minimum Wage or for a particular rate of National Minimum Wage."

 

(2) It is immaterial for the purposes of Sub-paragraph (a) or (b) of Paragraph (1):-

 

(a) whether or not the employee has the right, or

 

(b) whether or not the right had been infringed, but, for that paragraph to apply the claims to the right and, if applicable, the claim that it has been infringed must be made in good faith.

 

(3) The following are the rights to which this Article applies:-

 

(a) any right conferred by, or by virtue of, any provision of the National Minimum Wage Act 1998 for which the remedy of its infringement is by way of a complaint to an industrial tribunal, and

 

(b) any right conferred by Section 17 of the National Minimum Wage Act 1998 (worker received less than National Minimum Wage entitled to additional renumeration).

 

... ."

 

Article 140 -

 

"(1) Article 126 does not apply to the dismissal of an employee unless he has been continuously employed for a period of not less than one year ending with the effective date of termination.

 

...

 

(3) Paragraph (1) does not apply if -

...

 

(f) Paragraph (1) of Article 135A (read with Paragraph 2 of that Article) applies."

 

Article 127 -

 

"For the purposes this Part an employee is dismissed by his employer if ...

 

...

 

(c) the employee terminates a contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate without notice by reason of the employer's conduct."

 

Article 45 -

 

"(1) An employer shall not make a deduction from wages of a worker employed by him unless -

 

(a) the deduction is required or authorised to be made by virtue of a ... relevant provision of the worker's contract, or

 

(b) the worker has previously signified in writing his agreement or consent to the making of the deduction.

 

...

 

(3) Where the total amount of wages paid on any occasion by an employer to a worker employed to him is less than the total amount of the wages properly payable by him to the worker on that occasion (after deductions), the amount of the deficiency shall be treated for the purposes of this Part as a deduction made by the employer from the worker's wages on that occasion."

 

Article 59 -

 

"(1) In this Part, 'wages', in relation to a worker, means any sums payable to the worker in connection with his employment including -

 

(a) any fee, bonus, commission, holiday pay or other emoluments referable to his employment, whether payable under his contract or otherwise.

 

... ."

 

National Minimum Wage Act 1998

 

Section 1 -

 

"(1) A person who qualifies for the National Minimum Wage shall be remunerated by his employer in respect of his work in a pay reference period at a rate which is not less than the National Minimum Wage."

 

Section 17 -

 

"(1) If a worker who qualifies for the National Minimum Wage is remunerated for any pay reference period by his employer at a rate which is less than the National Minimum Wage, the worker shall be taken to be entitled under his contract to be paid, his additional remuneration in respect of that period, the amount described in Sub-section (2) below.

 

(2) That amount is the difference between -

 

(a) the relevant remuneration received by the worker for the pay reference period; and

 

(b) the relevant remuneration which the worker would have received for that period had he been remunerated by his employer at a rate equal to the National Minimum Wage.

 

(3) In Sub-section (2) above, 'relevant remuneration' means remuneration which falls to be brought into account for the purposes of Regulations under Section (2) above."

 

Section 23 -

 

"(1) A worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer, done on the ground that -

 

(a) any action was taken, or was proposed to be taken, by or on behalf of the worker with a view to enforcing, or otherwise securing the benefit of, or right of the worker to which this Section applies; or

 

...

 

(c) the worker qualifies for the purposes of Paragraph (a) ... of Sub-section (1) above -

 

(a) whether or not the worker has the right, or

 

(b) whether or not that right has been infringed.

 

But, for that Sub-section to apply, the claim to the right and, if applicable, the claim that it has been infringed must be made good faith.

 

...

 

(3) The following are the rights to which this Section applies:-

 

(a) any right conferred by, or by virtue of, any provision of this act for which the remedy for its infringement is by way of a complaint to an [industrial] tribunal; and

 

(b) any right conferred by Section 17 above.

 

(4) ... This Section does not apply where the detriment in the question amounts to dismissal within the meaning of that Part."

 

Section 28 -

 

" ... where -

 

(a) a complaint is made -

 

... (ii) to an industrial tribunal under Article 55(1)(a) of the Employment Rights (Northern Ireland) Order 1996 [unauthorised deduction from wages];

 

...

 

It shall be presumed for the purposes of the complaint, so far as relating to the deduction of that amount, that the worker in question was remunerated at a rate less than the National Minimum Wage unless the contrary is proved."

 

4.3 Regulations relating to the calculation of National Minimum Wage are particularly complex and, for which the Department of Business, Innovation and Skills ('BIS') has issued regular guidance. However, it was not disputed that at all times material to these proceedings, the minimum wage was £6.50 per hour. In broad terms, insofar as relevant to these proceedings, the following matters are relevant to any such calculation. For minimum wage purposes, the pay is allocated to a pay reference period of any pay:-

 

·          received during that period

 

·          earned in that period but not received until the next pay reference period

 

A worker's pay for minimum wage purposes must be calculated in a particular way. Some elements of pay, pursuant to the Regulations, do not count for minimum wage purposes. If an element of pay that does not count is wrongly included this can have the result that the minimum wage has been paid when in fact it has not. The initial calculation is based on the worker's total pay in a pay reference period, ie total pay before the deduction of income tax and National Insurance contributions. As set out in the Regulations and said guidance some payments are included and some are not. For example, benefits in kind do not count towards minimum wage pay, even if they have a monetary value. However, incentive payments do count towards minimum wage pay if they relate solely to the performance of a worker and are made as part of an incentive, sales commission, merit or any performance related pay scheme. [Tribunal's emphasis]

 

Production bonus, based on performance by the worker, paid by the employer, would also count towards the minimum wage. If there was in any relevant period no production bonus payable and, without same, the basic rate of pay payable in the relevant period was below the required minimum wage, then, as recognised by the respondent in this particular case, the minimum wage would have been payable. In this particular case, although the basic hourly rate of pay, as set out in the contract was £6.00 per hour, with the level of production bonus paid to the claimant, based on his performance, during the relevant period, the level of the National Minimum Wage was at the time satisfied and the necessity to 'make up' the claimant's wages to the said level of the National Minimum Wage never arose (see later).

 

5. Relevant legal authorities

 

5.1 In relation to the burden of proof provisions set out in Article 52A of the 1997 Order, the English Court of Appeal in the case of Igen v Wong [2005] IRLR 258, considered similar provisions under the Sex Discrimination Act 1976 applying in Great Britain and, approved, with minor amendment, the guidelines set out in the earlier decision of Barton v Investec Henderson Crosthwaite Securities Ltd [2003] IRLR 332. In a number of decisions, the Northern Ireland Court of Appeal has approved the decision of Igen v Wong [2005] IRLR 258 and the said two-stage process to be used in relation to the burden of proof (see further Brigid  McDonagh & Others v Samuel Thom t/a The Royal Hotel Dungannon [2007] NICA 1 and other decisions referred to below.) The decision in Igen v Wong [2005] IRLR 258 has been the subject of a number of further decisions in Great Britain, including Madarassy v Nomura International PLc [2007] IRLR 246, a decision of the Court of Appeal in England and Wales, and Laing v Manchester City Council [2006[ IRLR 748, both of which decisions were expressly approved by the Northern Ireland Court of Appeal in the case of Arthur v Northern Ireland Housing Executive & Another [2007] NICA 25. (See further the recent Supreme Court decision in the case of Hewage v Grampian Health Board [2012] UKSC 37, in which the Supreme Court approved the guidance in Igen and followed in subsequent case law, such as Madarassy [see below] ), and where it did not consider any further guidance was necessary. It also emphasised it was not necessary to make too much of the role of the burden of proof provisions; they required careful attention where there was room for debate as to the facts necessary to establish discrimination but they had nothing to offer where the Tribunal was in a position to make positive findings on the evidence one way or the other.

 

In Madarassy v Nomura International PLC [2007] IRLR 246 the Court of Appeal held, inter alia, that:-

 

"The burden of proof does not shift to the employer simply on the claimant establishing a difference in status (eg sex) and a difference in treatment. Those bare facts only indicate a possibility of discrimination. They are not, without more [tribunal's emphasis], 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 Section 63A(2) must mean that 'a reasonable tribunal could properly conclude from all the evidence before it. This would include evidence adduced by the claimant in support of the allegation of sex discrimination, such as evidence of a difference in status, difference in treatment and the reason for the differential treatment. It would also include evidence adduced by the respondent contesting the complaint. Subject to the statutory absence of an adequate explanation at this stage the Tribunal needs to consider all the evidence relevant to the discrimination complaint, such as evidence to whether the act complained of occurred at all, evidence as to the actual comparators relied upon by the claimant to prove less favourable treatment, evidence as to whether the comparisons being made by the claimant were of like with like as required by Section 5(3) and available evidence for the reasons for the differential treatment. The correct legal position was made plain by the guidance in Igen v Wong. Although Section 63A(2) involves a two-stage analysis of the evidence, it does not expressly or impliedly prevent the Tribunal at the first stage, from hearing, accepting or drawing inferences from evidence adduced by the respondent disputing or rebutting the claimant's evidence of discrimination ... ."

 

5.2 In relation to what is to be included by the expression 'something more' - guidance is to be found in the judgment of Elias J in The Law Society v Bahl [2003] IRLR 640, which judgment was approved by the Court of Appeal (see [2004] IRLR 799).

 

In Paragraph 94 of his judgment, Elias J emphasised that unreasonable treatment is not of itself a reason for drawing an inference of unlawful discrimination when he stated:-

 

"94. It is however a wholly unacceptable leap to conclude that whenever the victim of such conduct is black or a woman that it is legitimate to infer that our unreasonable treatment was because the person was black or a woman. All unlawful discriminatory treatment is unreasonable, but not all unreasonable discriminatory treatment is discriminatory, and it is not shown to be so merely because the victim is either a woman or of a minority race or colour. In order to establish unlawful discrimination it is necessary to show that the particular employer's reason for acting was one of the proscribed grounds. Simply to say that the conduct was unreasonable tells us nothing about the grounds for acting in that way. The fact that the victim is black or a woman does no more than raise the possibility that the employer could have been influenced by unlawful discriminatory consideration. Absent some independent evidence supporting the conclusion that this was indeed the reason, no finding of discrimination can possibly be made.

 

96. ... Nor in our view can Sedley LJ (in Anya v University of Oxford) be taken to be saying that the employer can only establish a proper explanation if he shows that he in fact behaves equally badly to members of all minority groups. The fact that he does so will be one way of rebutting an inference of unlawful discrimination, even if there are pointers which would otherwise justify that inference. ... No doubt the mere assertion by an employer that he would treat others in the same manifestly unreasonable way, but with no evidence that he had in fact done so, would not carry any weight with a tribunal which is minded to draw the inference on proper and sufficient grounds that the cause of the treatment has been an act of unlawful discrimination."

 

In particular, in Paragraph 101 of Elias J's judgment explained that unreasonable conduct is not necessarily irrelevant and may provide a basis for rejecting an explanation given by the alleged discriminator but then added these words of caution:-

 

"The significance of the fact that the treatment is unreasonable is that a tribunal will more readily in practice reject the explanation, given that it would if the treatment were reasonable. In short, it goes to credibility. If the tribunal does not accept the reason given by the alleged discriminator, it may be open to it to infer discrimination. But it will depend upon why it has rejected the reason he has given, and whether the primary facts it finds provide another and cogent explanation for the conduct. Persons who have not discriminated on the proscribed grounds may nonetheless give a false reason for the behaviour. They may rightly consider, for example, that the true reason costs then in a less favourable light, perhaps because it discloses incompetence or insensitivity. If the findings of the tribunal suggest there is such an explanation, then the fact that the alleged discriminator has been less than frank in the witness box when giving evidence will provide little, if any, evidence to support finding of unlawful discrimination itself."

 

At Paragraph 113 of his judgment, he also stated:-

 

"There is an obligation on the tribunal to ensure that it has taken into consideration all potentially relevant non-discriminatory factors which might realistically explain the conduct of the alleged discriminator ... ."

 

At Paragraph 220 he confirmed:-

 

"An inadequate or unjustified explanation does not of itself [tribunal's emphasis] amount to a discriminatory one."

 

In the recent decision in the case of The Solicitors Regulation Authority v Mitchell [2014] UKEAT/0497/12, this guidance was summarised in the following way ( Paragraph 46):-

 

"(i) In appropriate circumstances the 'something more' can be an explanation proffered by the respondent for the less favourable treatment that is rejected by the Employment Tribunal.

 

(ii) If the respondent puts forward a false reason for the treatment but the Employment Tribunal is able on the facts to find another non-discriminatory reason, it cannot make a finding of discrimination."

 

Determining when the burden of proof is reversed can be difficult and controversial as illustrated in the following decisions. In Maksymiuk v Bar Roma Partnership [UKEATS/0017/12] , when Langstaff P at Paragraph 28 said:-

 

"The guidance in Igen v Wong has been carefully refined. It is an important template for decision-making. As Laing and Madarassy have pointed out however, a tribunal is not required to force the facts into a constrained cordon where in the circumstances of the particular case they do not fit it. That would not to be apply the words of the statute appropriately. Intelligent application of the guidance, rather than slavish obedience where it would require contorted logic, is what is required."

 

Further, in Birmingham City Council v Millwood [2012] UKEAT/0564, Langstaff P stated:-

 

"26 What is more problematic is the situation where there is an explanation that is not necessarily found to be a lie but which is rejected as opposed to one that is simply not regarded as sufficiently adequate.

 

Realistically, it seems to us that, in any case in which an employer justifies treatment that has a detrimental effect as between a person of one race and a person or persons of another by putting forward a number of inconsistent explanations which are disbelieved (as opposed to not being fully accepted) there is sufficient to justify a shift of the burden of proof. Exactly that evidential position would have arisen in the days in which King v Great Britain - China Centre [1992] ICR 516 was the leading authority in relation to the approach should take to claims of discrimination. Although a tribunal must by statute ignore whether there is any adequate explanation in stage one of its logical analysis of the facts, that does not mean, in our view, to say that it can and should ignore an explanation that is frankly inadequate and in particular are that is disbelieved.

 

27 ... to prefer one conclusion rather than another is not, as it seems to us, the same as rejecting a reason put as being simply wrong. In essence, the tribunal in the present case appeared not to believe at least two of the explanations that were being advanced to it, and there were, we accept from what Mr Swanson has said, some three inconsistent explanations put forward for the difference in treatment that constituted the alleged discriminatory conduct."

 

On the facts of the case, in the Solicitors Regulation Authority case, it was found that a false explanation for the treatment was given by the respondent's witness, which was found to lack credibility and could therefore constitute the 'something more'; and the tribunal, having reversed the burden of proof, in the circumstances, was able to properly infer discrimination:-

 

"The tribunal asked the reason why the claimant had been treated as she was. It was not simply a question of the respondent putting forward no explanation but having given a false explanation. This was clearly capable of being 'something more' ... ."

 

This issue again arose in a further recent decision by the Employment Appeal Tribunal in the case of Veolia Environmental Services UK v Gumbs [UKEAT/0487/12] where the EAT recognised Igen, Madarassy and Hewage:-

 

"all exhibit the same tension; how to recognise the difficulty of proving discrimination on the one hand, whilst at the same time not stigmatising as racially discriminatory conduct which is simply irrational or unreasonable, on the other ... ."

 

It held, as set out in the head note of the judgment, it did not accept that Madarassy and Hewage supported the submission that an employer should not have the burden of proof reversed and be required to give a non-discriminatory explanation for its conduct in demoting an employee or denying the employee an opportunity to qualify to do different work where inconsistent explanations for the reason for the demotion had been given and an unacceptable account of knowledge of the ambition to qualify had been given. Whilst the substance of the explanation should be excluded from consideration when deciding whether the burden of proof should be reversed the fact that explanations had been given which were inconsistent could be taken into account. When an account of lack of knowledge as to the employee's ambition to qualify for different work had been contradicted by other evidence that was a factor to be considered in deciding whether the burden of proof had shifted.

 

5.3 In the case of Curley v Chief Constable of the Police Service of Northern Ireland and Another [2009] NICA 8, the Northern Ireland Court of Appeal approved the judgement of Elias LJ in Laing, which was also referred to with approval by Campbell LJ in the Arthur case, that it was not obligatory for a tribunal to go through the steps set out in Igen in each case; and also referred to the opinion of Lord Nicholls in Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] NI 147, where he observed at paragraph 8 of his opinion, as follows:-

 

"Sometimes a less favourable treatment issue cannot be resolved without, at the same time, deciding the reason why issue".

 

Lord Nicholl's opinion in the Shamoon case made clear the normal two step approach of Tribunals in considering, firstly, whether the claimant received less favourable treatment than the appropriate comparator, which can include an actual or hypothetical comparator, and then, secondly whether the less favourable treatment was on the proscribed ground, can often be avoided by concentrating on why the claimant was treated as he/she was; and was it for the proscribed reason or for some other reason. If the latter, the application fails. If the former, there would normally be no difficulty in deciding whether the less favourable treatment, afforded to the claimant on the proscribed ground was less favourable than was or would have been afforded to others (see further Paragraph 11 of Lord Nicholls' opinion). Indeed, Lord Nicholls' opinion emphasised that the question whether there had been less favourable treatment and whether the treatment was on the grounds of [sex] are in fact two sides of the same coin.

 

5.4 In Nelson v Newry and Mourne District Council [2009] NICA 24, Girvan LJ referred approvingly to the decisions in Madarassy and Laing and also held that the words 'could conclude' are not to be read as equivalent to 'might possibly conclude'. He said " the facts must lead to the inference of discrimination". He also stated:-

 

"24. This approach makes clear that the complainants allegation of unlawful discrimination cannot be used 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 probably conclude in the absence of an adequate explanation that the respondent has committed an act of discrimination. In Curley v Chief Constable the Police Service of Northern Ireland and Another [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 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 63 A. The tribunal's approach must be informed by the need to stand back and focus on the issue of discrimination."

 

5.5 Coghlin LJ, in the case of Curley, also referred to the well known dicta of Carswell LCJ, as he then was, in the Sergeant A case, which also emphasised the necessity for the tribunal to look at the matter, in the light of all the facts as found:-

 

"3. Discrepancies in evidence, weaknesses and procedures, poor record keeping, failure to follow established administrative processes or a satisfactory explanation from an employer may all constitute material from which an influence of religious discrimination may legitimately be drawn. But Tribunals should be on their guard against the tendency to assume that every such matter points towards a conclusion of religious discrimination, especially where other evidence shows such a conclusion is improbable on the facts."

 

5.6 It can occur, in certain circumstances, that there is found to be more than one reason for the discriminator's actions.

 

In O'Neill v Governors of St Thomas More Upper School [1996] IRLR 372, Mummery J suggested a tribunal's approach to the question of causation should be simple, pragmatic and commonsensical and that, from the whole complex of facts what is the 'effective and predominant cause' or the 'real and efficient cause' of the discriminatory act complained of.

 

In Nagarajan v London Regional Transport, a race case, [2000] AC 501, Lord Nicholls said:-

 

"Decisions are frequently reached for more than one reason. Discrimination may be on racial grounds even though it is not the sole ground for the decision. A variety of phrases, with different shades of meaning, have been used to explain how the legislation applies in such cases; discrimination requires that racial grounds were a cause, the activating cause, a substantial and effective cause, a substantial reasons, an important factor. No one phrase is obviously preferable to all others, although in the application of this legislation, legalistic phrases, as well as subtle distinctions are better avoided so far as possible. If racial grounds had a significant influence on the outcome, discrimination is made out."

 

In Igen v Wong, the dicta of Lord Nicholls in Nagarajan were found to be by the Court of Appeal to be not substantially different to the formulation 'no discrimination whatsoever' (see Barton).

 

A significant influence is an influence which is more than trivial.

 

In Law Society v Bahl [2003] IRLR 640, a case of sex and race discrimination, Elias J gave this guidance:-

 

"But if the evidence does not satisfy the tribunal that there is discrimination on grounds of race or on grounds of sex, considered independently, then it is not open to a tribunal to find either claim satisfied on the basis there is nonetheless discrimination on grounds of race and sex when both are taken together. That would fail to give effect to the fact that the burden of proof is on the applicant. Nor can the tribunal properly conclude, if it is uncertain about whether it is race or sex, that it would find both."

 

5.7 Detriment is not defined in the 1998 Act - but the provision is in similar terms to the provisions governing among things, the right not to suffer detriment on grounds of health & safety and/or protected disclosure, contained in the 1996 Order.

 

It has to be noted, however, that the relevant provisions in the 1996 Order and the 1998 Act requires that the employer subjected the employee to the detriment.

 

In relation to similar wording, contained in Article 70B (protected disclosure detriment) of the 1996 Order, in the case of NHS Manchester v Fecit [2011] EWCA 1190, it was held that [Article 70B] would be infringed if the protected disclosure materially influenced (in the sense of being more than a trivial incident) the employer's treatment of the employee. As Elias LJ said:-

 

"If Parliament had wanted the test for the standard of proof in [Article 70B] to be the same as for unfair dismissal it could have used precisely the same language but it did not do so."

 

This guidance, given the similarity of wording would be seem to be of relevance in relation to a claim for detriment, pursuant to Section 23 of the 1998 Act.

 

In Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] IRLR 285, the House of Lords, on an appeal from Northern Ireland, when considering the issue of detriment, albeit in the context of a discrimination claim, gave guidance to the meaning of detriment, which is also of relevance where the term is used in the 1996 Order:-

 

"In order for a disadvantage to qualify as a detriment it must arise in the employment field in that the Court or tribunal must find that by reason of the act or acts complained of a reasonable employer would or might take the view that he had thereby been disadvantaged in the circumstances in which he had thereafter to work."

 

Also -

 

"An unjustified sense of grievance cannot amount to detriment."

 

(See also Chief Constable of Yorkshire Police v Khan [2001] UKHL 48.) The applicability of the guidance in Shamoon to claims of detriment in a protected disclosure case was recognised in Korashi v Abertawe Bro Morgannwg University Local Health Board [UKEAT/0424/09/1208] and would seem to be of similar application to a claim under the 1998 Act.

 

In Deer v University of Oxford [2015] IRLR 481, the Court of Appeal held there will be cases where procedural failings may give rise to a detriment, even though it is plain they had no effect on the substantive outcome of the investigation.

 

5.8 As stated in Harvey on Industrial Relations and Employment Law, Volume 1 Section D1, at Paragraph 4.03, it has long been held:-

 

"In order for an employee to be able to claim constructive dismissal four conditions must be met -

 

(1) There must a breach of contract by the employer. This may be either actual breach or an anticipatory breach.

 

(2) That breach must be sufficiently important to justify the employee resigning or else it must be the last in a series of incidents which justify him leaving. Possibly a genuine albeit an erroneous interpretation of the contract by the employer will not be capable of constituting a repudiation in law.

 

(3) He must leave in response to the breach and not for some unconnected reason.

 

(4) He must not delay too long in terminating the contract in response to the employer's breach, otherwise he may be deemed to have waived the breach and agreed to vary the contract."

 

See further Western Excavating v Sharp [1978] QB 761.

 

The claimant having resigned, as set out previously, issues of 'constructive' dismissal, pursuant to Article 127(1)(c) therefore arose. Such guidance is relevant to a claim of 'ordinary' unfair constructive dismissal, pursuant to Article 126 of the 1996 Order. However, as seen previously, the tribunal did not have jurisdiction to determine any such claim, as the claimant did not have the necessary qualifying period of employment to enable to bring such a claim. As a consequence, the claimant's claim of unfair dismissal was limited to a claim of 'automatic' unfair dismissal, pursuant to Article 135A of the 1996 Order (see before).

 

In a claim of automatic unfair dismissal, where the dismissal is a constructive dismissal, the burden is on the employee first to show hat he has resigned in response to a repudiatory breach of contract. As clarified by the Court of Appeal in Buckland v Bournemouth University Higher Education Corporation [2010] EWCA Civ 121, a range of reasonable responses test forms no part of the exercise of deciding whether the employer was in (a necessarily repudiatory) breach of the trust and confidence term. The Court also held that, unlike an anticipatory breach which can be cured up to the moment of the acceptance, a completed breach cannot be cured in this way, although if there is a delay, especially after steps to make amends, the employee may be taken to affirm the contract and so lost the opportunity to claim constructive dismissal.

 

Having established the dismissal within the terms of Article 127(1)(c) of the 1996 Order, it continues to be necessary, for the purposes of Article 135A of the 1996 Order to identify the reason for dismissal.

 

In the case of Berriman v Delabole Slate Ltd [1985] ICR 456, the Court of Appeal held:-

 

"In our judgment, even a case of constructive dismissal, [Section 98(1) of the ERA] imposes on the employer the burden of showing the reason for the dismissal, notwithstanding that it was the employee, not the employer, who actually decided to terminate the contract of employment. In our judgment, the only way in which the statutory requirements of the [ERA] can be made to fit a case of constructive dismissal is to read [Section 98(1)] as requiring the employer to show the reason for their conduct which entitled the employee to terminate the contract thereby giving rise to a deemed dismissal by the employer. Thus, it would appear that the focus in on the reason for the conduct which the employee has shown amounted to a repudiatory breach of contract."

 

Thus, in a case of unfair constructive dismissal, the claimant could only be found to be so dismissed 'if the reason (or if more than one, the principal reason) for the dismissal was for a 'National Minimum Wage Act reason', set out in Article 135A(a) and (b). As stated previous this test has to be contrasted with the 'material influence test in a case of detriment pursuant to Section 23 of the 1998 Act referred to previously - see NHS Manchester v Fecit [2011] EWCA 1190.

 

6.1 In light of the facts, as found by the tribunal, and after applying the legislative provisions and the guidance set out in the legal authorities referred to in the previous paragraphs of this decision, the tribunal reached the following conclusions, as set out in the following sub-paragraphs.

 

6.2 Since, at all times material to these proceedings, the claimant was paid by the respondent, the relevant National Minimum Wage to which he was entitled and, given that the said production bonus to which he was entitled was at all times included in the relevant calculation for the wages paid to him, the claimant therefore did not suffer any unauthorised deduction from his wages, in contravention of Article 45 of the 1996 Order.

 

6.3 The claimant, at his second meeting/interview with Mr Doherty, raised the issue of the production bonus and its absence from the written standard contract; and it was clear he wished to ensure, despite its omission, he would be paid the said production bonus and therefore not only the £6.00 per hour, as stated in the contract. However, having been assured by Mr Doherty he would be paid the production bonus to which he was entitled, and the details of how the production bonus worked were explained to him, the claimant raised no further objection. In particular, he did not raise then, or indeed subsequently, the issue of the National Minimum Wage. In the judgment of the tribunal, the context of the conversation with Mr Doherty related not to the National Minimum Wage but to obtaining the relevant assurance from Mr Doherty that he would be paid a production bonus, despite the terms of the contract. Indeed, as set out previously, at all times material to these proceedings, the claimant received a sum greater than the National Minimum Wage.

 

The production bonus was paid for both re-work/repair work but also production welding work (ie new work), provided the work was done as required. The claimant was paid the same rate of production bonus, applicable to such work, as were all other welders. Indeed, for re-work/repair work, in contrast to production welding work (new work) there was no allocated time to carry out the work in order to obtain the relevant bonus on the completed work. Requirement to do such re-work/repair work varied from week-to-week, day-to-day, depending on the production requirements and also, of course, by its very nature, the number of mistakes which had been made which required to be the subject of re-work/repair work. The claimant, contrary to his evidence to the tribunal, did and was required to do both types of work and was paid the relevant production bonus for each type of work. The claimant undoubtedly believed he could obtain greater production work bonus only by doing such 'new work' given his experience but, more importantly, he much preferred to do that type of work. However, all welders, as part of their duties, did both types of work and there was no evidence of unfair allocation of such re-work/repair work to the claimant. Such work required to be done and was part of his duties on the night shift. The claimant's dislike for such re-work/repair work, and his desire not to have to do it, coupled with his belief that if he did not do such work he could earn greater bonus, was at the heart of his complaint; and, in particular, was not related to any issue about the National Minimum Wage, which at all times was correctly paid to him. In the circumstances, the tribunal was not satisfied the claimant had shown he had suffered any detriment because the claimant had raised any National Minimum Wage issue. As set out above, he had not raised any such issue and in such circumstances the tribunal could not conclude this issue had any influence, let alone a material influence, on the type of work he was required to do and the amount of relevant production bonus earned by him. His claim, pursuant to Regulations 23 - 24 of the 1998 Act must therefore be dismissed.

 

6.4 For similar reasons, the tribunal was not satisfied the claimant had shown the termination of his employment, when he resigned, related in any way to such an National Minimum Wage issue; but rather, in the judgment of the tribunal, it related to the claimant not wanting to do re-work/repair work, for the reasons set out previously, which at all times was part of his duties. In the circumstances, the tribunal was not satisfied that the claimant had established any relevant repudiatory contract justifying his resignation. His claim of automatic unfair constructive dismissal must therefore be dismissed, pursuant to Article 135A of the 1996 Order. Since the claimant had not established a claim, pursuant to Article 135A of the 1996 Order, the tribunal had no jurisdiction to consider a claim of 'ordinary' unfair constructive dismissal, as the claimant did not have the relevant period of employment, pursuant to the 1996 Order, to enable him to bring such a claim.

 

6.5 The claimant, in his claim for racial discrimination, relied on the two Northern Ireland comparators, B and S, who were also welders on the night shift. Obviously there was a difference of nationality; but, without more, this was not sufficient to establish a claim of racial discrimination. (See, for example, Madarassy and the other legal authorities referred to in Paragraphs 5.1 - 5.6 of this decision.) Both the claimant and his comparators did re-work/repair work but also production welding work (new work) as welders on that night shift. Because of their particular skill set and greater versatility, in comparison to the claimant, B and S, as required, did on occasion, production welding work (new work) in other departments. As a consequence, depending on the need for re-work/repair work to be done on the night shift at any particular time, it was possible the claimant could have done more re-work/repair work than B and S. However, the tribunal was satisfied that any such allocation of work in such circumstances was nothing to do with race but arose because of the particular skill set and versatility of B and S in the circumstances. Further, given this enhanced ability, coupled with their longstanding good working relationship, the respondent did not want to break up the team of B and S and substitute the claimant for one of them in the team, as it would have affected the ability to satisfy production requirements on the night shift, which were not just in the claimant's department. Again, these decisions on the allocation of work and type of work to be done, as required, the membership of the team, the payment of the relevant production bonus for any such work completed, were not, in the judgment of the tribunal related to the claimant's nationality. The claimant's undoubted dislike of doing such work, which was part of his duties, was not, in the circumstances, a proper basis for a claim of race discrimination. The claimant was paid the proper production bonus for all such work properly allocated to him, as part of his duties, and properly completed by him in order to enable the relevant production bonus to be paid to him. In these circumstances, the fact that different sums were paid to different welders by way of production bonus, without more, was not of itself evidence of any unfavourable treatment, let alone unfavourable treatment on the grounds of race.

 

For the reasons set out above, the tribunal could not properly conclude, in the circumstances, the respondent had discriminated against the claimant on the grounds of his race, pursuant to the 1997 Order.

 

7. The claimant's claims are therefore dismissed.

 

 

 

 

 

 

 

Employment Judge

 

 

Date and place of hearing: 27 - 29 October 2015; and

26 November 2015, Belfast

 

 

Date decision recorded in register and issued to parties: