THE INDUSTRIAL TRIBUNALS

CASE REF:   260/10

CLAIMANT:			Sigita Voveryte

RESPONDENTS:		Jacqueline Chivers

DECISION
The unanimous decision of the tribunal is as follows:-
1.	that the claimant is entitled to one week’s pay in lieu of notice uplifted by 50% since the respondent was wholly responsible for the non-completion of the statutory grievance procedure
2.	that the claimant is entitled to three weeks’ unpaid wages uplifted by 50% since the respondent was wholly responsible for the non-completion of the statutory grievance procedure
3.	that the claimant suffered discrimination on the grounds of race when the respondent dismissed her and the claimant is therefore entitled to compensation for loss of earnings and injury to feelings as a result of this discriminatory dismissal.  This award of compensation is uplifted by 40% to reflect the respondent’s responsibility for the non-completion of the statutory dismissal procedure
4.	that the respondent is hereby ordered to pay to the claimant a total sum of £7,619.45

Constitution of Tribunal:

Chairman:	Ms J Turkington

Members:	Mr J Law
	Mrs S Doran

Appearances:

The claimant appeared and represented herself.

The respondent did not appear and was not represented.

The Claims

1.	The claimant’s claims were:-

	(a)	a claim for notice pay

	(b)	a claim for unpaid wages

	(c)	a claim of race discrimination in respect of the claimant’s dismissal by the respondent

The Issues

2.	The issues which the tribunal had to determine were as follows:-

	(a)	Whether the respondent failed to provide the required period of notice to the claimant or to pay the claimant in lieu of notice and, if so, the amount of pay in lieu of notice due to the claimant.

	(b)	Whether the respondent failed to pay wages properly due to the claimant and, if so, the amount of such unpaid wages.

	(c)	Whether the dismissal of the claimant by the respondent was discriminatory on grounds of race.

Disposal of the claim in the absence of the respondent

3.	The respondent did not appear at the hearing.  The tribunal was satisfied that the Notice of Hearing had been duly sent to the respondent in good time before the hearing.  The respondent had not presented a response form and, in accordance with rule nine of the Industrial Tribunal Rules of Procedure, the respondent was therefore not entitled to take any part in the proceedings at the hearing.  Accordingly, the tribunal decided that it was appropriate to proceed to hear the claim in the absence of the respondent.

Sources of Evidence

4.	The tribunal heard oral evidence from the claimant and was also referred to a number of documents in the tribunal bundle prepared by the claimant.

Findings of Fact

5.	Having considered the evidence given by the claimant and the documents referred to by the claimant, the tribunal found the following relevant facts:-

(1)	The claimant was born in Lithuania.  In September 2009, the claimant was living in Downpatrick and she became a customer of the respondent at the Metro Barbers shop.  The claimant and the respondent got to know each other and the respondent asked the claimant if she could work for her in the shop on Saturdays for £6.50 per hour.

(2)	The claimant therefore began working for the respondent on 3 October 2009.  During the month of October, the claimant worked a total of 16 hours on successive Saturdays and was paid £6.50 per hour as agreed.

(3)	On 4 November, the claimant was at the shop as a customer and she asked the respondent for her pay slip and for written terms of employment.  Following this conversation, the respondent’s attitude changed and she told the claimant that she would not be required to work on Saturday, 7 November.

(4)	The claimant was at work on Saturday, 14 November.  Whilst the claimant was with the respondent at the local chip shop for lunch, the respondent was talking about the number of foreigners coming to Northern Ireland.  She began to swear and compared foreigners to pests and said they should not be allowed in the country.

(5)	On Saturday, 21 November, the claimant was at work.  The respondent called her a “stupid Lithuanian” in front of customers.  The respondent also made comments such as “don’t you think she stinks?  It must be in the blood, ‘cos them foreigners eat all sorts of crap”.  After that, the respondent told the claimant she was not required at work the next Saturday.

(6)	The respondent’s assistant Miss Warnick, who was of Northern Ireland origin, was never subject to such comments.

(7)	On Saturday, 5 December, the claimant was at work.  She asked if she could receive her pay and her pay slip.  The respondent and Miss Warnick left the shop leaving the claimant alone in the shop for 20-25 minutes.  When the respondent returned to the shop, she asked the claimant to open the till to take out some money.  When the claimant did so, the till was empty, save for small change.

(8)	The respondent then accused the claimant of stealing the morning’s takings saying “all Lithuanians are thieves”.  The claimant emphatically denied this and asked the respondent to search her or to call the police.  The respondent told the claimant to put on her coat and she took the claimant by the shoulders and forced her out of the premises.  The claimant was extremely angry and upset at being treated in this way.

(9)	The respondent did not treat Miss Warnick in the same manner.

(10)	On 8 December, the claimant went to the respondent’s shop and asked for her salary.  The respondent asked her to come back at the weekend.  Later that day, the claimant received a text message from the respondent saying that the claimant was owed nothing.  The next day, the claimant received a further text message from the respondent saying that she (the respondent) did not receive handouts from housing benefit, that she pays the claimant’s rent with her taxes and that she was going to report the claimant to the police.

(11)	On 12 December 2009, having taken advice, the claimant wrote a grievance letter to the respondent.  In this letter, the claimant complained that she had been unfairly dismissed and that she had not received pay for the period from 14 November to 5 December 2009.  On 15 December, the claimant received a threatening text message, which she believes was sent by the respondent.

(12)	Throughout her employment with the respondent, the claimant continued to work for another employer on weekdays.  She only worked for the respondent on Saturdays.  After her dismissal by the respondent, the claimant looked for other Saturday work, but was unable to find any such employment.  By the time of the tribunal hearing, the claimant had moved to another part of Northern Ireland and was again in employment, although not working on Saturdays.

(13)	At the time of the tribunal hearing, the claimant was still visibly upset by the treatment she had received from the respondent, particularly how she was treated on the day of her dismissal.

Statement of Law

Notice pay

6.	By Article 118 of the Employment Rights (Northern Ireland) Order 1996 (“the Order”), an employee who has been continuously employed for one month or more has the right to one week’s notice of termination of her employment.  Where the employee does not receive the requisite period of notice, she has the right to receive pay in lieu of such notice.

Failure to pay wages

7.	By Article 45 of the Order, an employer shall not make a deduction from wages of a worker employed by him save in certain limited circumstances.  The failure of an employer to pay wages properly due to the employee on any occasion constitutes an unlawful deduction from wages. 

Statutory Grievance Procedure

8.	The statutory grievance procedure set out in the Employment (Northern Ireland) Order 2003 (“the 2003 Order”) is applicable in this case.  The standard statutory grievance procedure requires the employee to put his complaint in writing to the employer and for the employer to invite the employee to a meeting to discuss the grievance and then to provide an appeal meeting.  Pursuant to Article 17 of the 2003 Order, where it appears to the tribunal that the non-completion of the statutory grievance procedure was wholly or mainly attributable to the employer, it shall increase any award made to the employee by 10 per cent and it may, if it considers it just and equitable in all the circumstances to do so, increase the award by a further amount up to 50 per cent.

Discrimination on the grounds of race

9.	By Article 3(1) of the Race Relations Order (RRO), a person discriminates against another if, on racial grounds, he treats that person less favourably than he treats or would treat others.  This is generally known as direct discrimination on grounds of race.

10.	For the purposes of the RRO, “racial grounds” means grounds of colour, race,
nationality or ethnic or national origins.

11.	By Article 6(2) (c) of the RRO, it is unlawful for an employer to discriminate against an employee by dismissing him.

12.	Article 52A of the RRO, which applies to the employment provisions of the RRO, states as follows:-
“Burden of proof: industrial tribunals
52A. - (1)	This Article applies where a complaint is presented under Article 52 and the complaint is that the respondent:
(a)	has committed an act of discrimination, on grounds of race or ethnic or national origins, which is unlawful by virtue of any provision referred to in Article 3(1B) (a), (e) or (f), or Part IV in its application to those provisions, or
(b)	has committed an act of harassment.
	(2)	Where, on the hearing of the complaint, the complainant proves facts from 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 or harassment against the complainant,
(b)	is by virtue of Article 32 or 33 to be treated as having committed such an act of discrimination or harassment against the complainant,
the tribunal shall uphold the complaint unless the respondent proves that he did not commit or, as the case may be, is not to be treated as having committed, that act”.
In the case of Igen v Wong [2005] EWCA Civ 142, [2005] IRLR 258, [2005] ICR 931, the English Court of Appeal approved, with certain minor modifications, the general guidelines laid down in the previous case of Barton as to the impact of provisions in the same terms as Article 52A of the RRO. The Court of Appeal confirmed that a two-stage process is required of tribunals in cases where direct discrimination is alleged.  First, the claimant has to prove facts from which the tribunal could conclude there had been unlawful discrimination. Once the tribunal is satisfied on that basis, the burden of proof shifts to the respondent (employer) who has to show that he did not commit (or is not to be treated as having committed) the unlawful act.  In considering whether the claimant has proved facts from which the tribunal could conclude that the respondent had committed an act of unlawful discrimination, the tribunal can draw appropriate inferences from the primary facts.
In considering what inferences it is appropriate to draw from the primary facts, the tribunal should proceed on the basis that there is no adequate, non-discriminatory explanation for those facts.
13.	The statutory dismissal procedure introduced by the 2003 Order applies to the dismissal of the claimant.  In basic terms, the statutory procedure set out in Schedule One of the 2003 Order requires the following steps:-

Step One - Written statement of grounds for action and invitation to meeting - the employer must set out in writing the grounds which lead the employer to contemplate dismissing the employee.

Step Two - Meeting - After the meeting, the employer must inform the employee of his decision and notify him of the right to appeal against the decision.

Step Three - Appeal - if the employee informs the employer of his wish to appeal, the employer must invite him to attend a further meeting.  After the appeal meeting, the employer must inform the employee of his final decision.  The employee must be afforded the right to be accompanied at any meetings under the statutory dismissal procedure.

14.	By Article 17 of the 2003 Order, where the tribunal is satisfied that the non-completion of an applicable statutory procedure is wholly or mainly attributable to failure by the employer, it shall increase any award which it makes to the employee by 10 per cent and may, if it considers it just and equitable in all the circumstances to do so, increase it by a further amount up to an increase of 50 per cent.

Conclusions

Notice Pay

15.	It is clear that the claimant was dismissed immediately and without notice.  On the basis of the evidence before it, the tribunal had little hesitation in concluding that summary dismissal was not justified in the circumstances.  Accordingly, the claimant is entitled to one week’s pay in lieu of notice.

16.	The claimant’s average weekly working hours were four hours per week and her rate of pay was £6.50 per hour.  The claimant is therefore entitled to pay in lieu of notice as follows:-

Four hours multiplied by £6.50 per hour = £26.00.

Unpaid wages

17.	The Claimant worked on Saturday, 14 November, Saturday, 21 November and Saturday, 5 December 2009.  On these occasions, she worked a total of 11 hours.  The claimant did not receive any pay for these hours worked.

18.	The claimant is therefore entitled to unpaid wages as follows:-

11 hours multiplied by £6.50 per hour = £71.50.

Statutory Grievance Procedure

19.	The claimant sent a grievance letter to the respondent on 12 December 2009 in which she referred to the respondent’s failure to give notice and to pay three weeks wages.  The respondent failed to make any response to the claimant’s grievance save for the text message referred to at Para 5(11) above.

20.	The tribunal had little difficulty in concluding in these circumstances that the respondent was wholly responsible for the non-completion of the statutory grievance procedure.  Indeed, the tribunal found it shocking that, rather than seeking to explore a resolution to the claimant’s grievance, the respondent’s response was to send an abusive message to the claimant.

21.	The tribunal considers that the respondent’s conduct in response to the claimant’s grievance was wholly unacceptable and the tribunal has therefore decided that the awards in respect of notice pay and unpaid wages should both be uplifted by the maximum percentage allowed under Article 17 of the 2003 Order, that is by 50 per cent.

Total uplifted award for notice pay and unpaid wages

22.	The total uplifted award to the claimant in respect of notice pay is as follows:-

Award in respect of notice pay = £26 + uplift of 50% = £39.00.

23.	The total uplifted award to the claimant in respect of unpaid wages is as follows:-

Award in respect of notice pay = £71.50 = uplift of 50% = £107.25.

Discrimination on the grounds of race 

24.	The tribunal had to determine whether the dismissal of the claimant constituted less favourable treatment on grounds of her race.  In determining this question, the tribunal applied the guidance in the Igen case as set out at Para 12 above.  In this case, the tribunal was mindful that it was not hearing a claim of harassment on grounds of race.  However, it did hear uncontested sworn testimony from the claimant describing a campaign of serious harassment against her and it was clear from the words used by the respondent, that this treatment was on grounds of the claimant’s race.

25.	The tribunal also found as a fact that the respondent’s assistant Miss Warnick, who was born and raised in Northern Ireland, was not treated in the same manner as the claimant either in the weeks leading up to the claimant’s dismissal or on the day when the claimant was dismissed.  The respondent’s suspicion was directed solely at the claimant and the words used by the respondent on that occasion –“all Lithuanians are thieves” – clearly suggest that the respondent’s words and actions were very much influenced by the claimant’s race.

26.	Against this background, the tribunal had little hesitation in concluding that the first stage of the Igen  test was satisfied, that is that the claimant had proved facts from which the tribunal could conclude, in the absence of an adequate 
non-discriminatory explanation for those facts, that the dismissal of the claimant was discriminatory on grounds of race.
27.	In this case, the respondent did not appear at the hearing nor had she filed a response form.  The respondent failed therefore to provide the tribunal with any explanation for the facts found by it.

28.	The tribunal therefore concluded that the dismissal of the claimant by the respondent constituted less favourable treatment on the grounds of the claimant’s race.

Compensation – loss of earnings

29.	Having concluded that the claimant was subjected to unlawful discrimination as outlined above, the tribunal proceeded to consider the question of compensation.  The tribunal was satisfied that the claimant was entitled to compensation for loss of earnings attributable to discrimination on the grounds of race, namely her dismissal.

30.	Having considered the relevant facts, the tribunal took the view that it was reasonable to allow the claimant a period of three months to replace her earnings from her Saturday employment with the respondent.  Accordingly, the tribunal determined that it was just and equitable to award the claimant three months loss of earnings calculated as follows:-

Three months (13 weeks) multiplied by an average of four hours per week multiplied by £6.50 per hour = £338.00.

Compensation - Injury to feelings

31.	The tribunal was satisfied that the claimant was entitled to an award for injury to feelings.  At the time of her dismissal, the claimant felt extremely angry and upset at the manner in which she had been treated.  At the date of hearing, when giving evidence about the day when she was dismissed, the claimant was visibly upset and it was clear to the tribunal that she continued to feel angry and hurt about the manner in which she was treated by the respondent at the time of her dismissal.

32.	The tribunal assessed the award for injury to feelings in this case towards the top end of the lowest of the bands in the Vento case (originally up to £5,000, but now revised to approximately £6,000 to £6,500 in accordance with recent rulings both locally and by the EAT in order to take account of inflationary factors since the Vento bands were determined).  Accordingly, the tribunal concluded that the appropriate award for injury to feelings in this case was £5,000.

Statutory Dismissal Procedure

33.	The statutory dismissal procedure was applicable to the dismissal in this case.  The respondent entirely failed to follow any part of the standard dismissal procedure.  In particular, the respondent failed to send a step one letter to the claimant setting out the grounds on which dismissal was contemplated.

34.	The tribunal was of the view that the respondent showed a flagrant disregard for the applicable statutory procedure and the tribunal therefore considered that the appropriate uplift lay towards the higher end of the scale between 10 and 50 per cent.  The tribunal determined that the appropriate uplift in this case was 40 per cent of the award to the claimant in respect of the race discriminatory dismissal.

Total uplifted award for race discrimination

35.	The total uplifted award for race discrimination is as follows:-
	Award for loss of earnings                           	=	£338.00
	Award for injury to feelings                          	=  £5,000.00
	Total award for race discrimination              	=  £5,338.00 
	Uplifted by 40%                                  add         £2,135.20
	Total uplifted award for race discrimination =    £7,473.20

Total award

36.	The total award to be paid by the respondent to the claimant is:-

Total uplifted award for notice pay                   	    £39.00
Total uplifted award for unpaid wages             	  £107.25
Total uplifted award for race discrimination        £7,473.20

            Grand Total                                                 	£7,619.45

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

Chairman:

Date and place of hearing: 27 May 2010, Belfast.

Date decision recorded in register and issued to parties: