McDonagh & Anor v Event 22 Ltd [2007] NIIT 71_04 (15 January 2007)

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You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> McDonagh & Anor v Event 22 Ltd [2007] NIIT 71_04 (15 January 2007)
URL: http://www.bailii.org/nie/cases/NIIT/2007/71_04.html
Cite as: [2007] NIIT 71_4, [2007] NIIT 71_04

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    THE INDUSTRIAL TRIBUNALS

    CASE REFS: 71/04

    72/04

    CLAIMANTS: Martin McDonagh

    Patrick Stokes

    RESPONDENT: Event 22 Limited

    DECISION

    The unanimous decision of the tribunal is that each of the claimants was discriminated against by the respondent on the ground of their race. Each claimant is awarded £10,000 to include an award of aggravated damages in each case. In addition, interest of £2,800 is awarded to each claimant.

    Constitution of Tribunal:

    Chairman: Mr T Browne

    Members: Mr F Dodds

    Dr C Ackah

    Appearances:

    The claimants were represented by Ms Suzanne Bradley, Barrister-at-Law, instructed by The Equality Commission.

    The respondent was represented by Messrs Gray Magee, Solicitors, until the morning of the hearing, when they sought and received the consent of the tribunal to come off record. No witness or other representative of the respondent attended the hearing.

    ISSUE

  1. The issue to be decided was that of race discrimination on the grounds of the claimants' belonging to the Irish Traveller community. The tribunal considered that these were claims of direct discrimination under Article 3(1) and (3) of the Race Relations (Northern Ireland) Order 1997, as well as Article 5, which includes in the definitions of "racial grounds" and "racial group" the Irish Traveller community. The tribunal also had regard to Regulation 40 of the Race Relations Order (Amendment Regulations) (Northern Ireland) 2003 which provides a new Article 52(a) of the 1997 Order (the Burden of Proof Regulations).

    2. FINDINGS OF FACT

  2. In reaching its findings of fact, the tribunal had regard to the oral evidence and written materials before it, which included the originating claims and written responses submitted by the respondent.

  3. The two claimants are cousins, and both are members of the Irish Traveller community. Mr McDonagh was 18 years old at the time of this incident; Mr Stokes was 19 years old. In August 2003, both were recruited through a recruitment agency to work for the respondent as labourers at the Odyssey Arena in Belfast. The respondent at no stage sought to deny that the claimants were employed by it, and it should be made clear at this point that the management and staff of the Odyssey Arena have no involvement in this case.

  4. The claimants attended as required on Thursday 21 August 2003 to set up an event organised by the respondent known as 'Extreme Airjam'. This was an indoor display of scrambler motorbikes, which normally perform in rural settings, requiring the erection of ramps and the manual movement of large amounts of earth to give a feeling of authenticity.

  5. The claimants gave uncontradicted evidence that they were contracted to work again on Sunday 24 August to return the inside of the Odyssey to its original condition. They told the tribunal that they both enjoyed their day's work on 21 August.

  6. At some point during the day, Colin Mason, who was accepted by the respondent as being its manager at the Odyssey event, approached the two claimants while they were working. He commented on their accents, asking if they were from Dublin. When the claimants said they were not from Dublin, Mr Mason turned and walked off without further comment or enquiry.

  7. The claimants finished their day's work without further incident or contact with Mr Mason. They were due to return on Sunday 24 August, and heard nothing to the contrary from the recruitment agency or the respondent in the intervening days.

  8. Mrs Brigid McDonagh, mother of the claimant, Martin McDonagh, drove the two claimants to the Odyssey Arena, arriving at 6.00 am as required, and she then went home. Outside the Odyssey the claimants met another labourer employed in the same job as they. This man was described to the tribunal by the claimants as a 'settled person', which they explained is someone not from the Irish Traveller community.

  9. As the three men went to go into the Odyssey however, Mr Mason approached them, and asked the two claimants if the recruitment agency had not contacted them to say not to come to work. They said no, whereupon Mr Mason told the two claimants there was no work for them and instructed a security guard to escort the two men from the premises. The 'settled person' was not challenged by Mr Mason, and was allowed to continue into the Odyssey. The respondent at no stage denied that the other person had been allowed to go in to complete his work.

  10. When the claimants asked Mr Mason why there was no work, he stated that he did not have to give a reason. The two claimants then had to make their own way home.

  11. When Mrs McDonagh contacted the recruitment agency at the earliest opportunity, they told her that there had been no contact from the respondent between the Thursday and Sunday as to why the claimants should not return.

  12. The claimants described to the tribunal how they felt shamed and humiliated to be turned away from their place of work, especially in front of other people who were allowed to go in. The only reason they could think of was that they had been turned away on racial grounds because of their distinctive accent and its association with membership of the Irish Traveller community.

  13. Upon the instigation of these tribunal proceedings however, the respondent asserted that Mr Mason had caught the two men stealing from his jacket during Thursday 21 August, and that the respondent had advised the recruitment agency of this. This assertion was refuted by the claimants, neither of whom has any criminal record.

  14. The tribunal noted that the respondent failed to provide any response to requests from the claimants' representative to provide a record of any such complaint, either to the recruitment agency or to police. Nor did the respondent show any attempt to obtain any CCTV footage from the Odyssey to support its assertion that the claimants had been apprehended by Mr Mason in an area of the building which they ought not to have entered.

  15. The tribunal had no hesitation in rejecting the respondent's assertions in this regard, which were completely unsupported by evidence which ought to have been readily available if it had existed and if they had made any effort to obtain it. The tribunal found the claimants to be honest, straightforward witnesses as to the relevant events and their feelings.

    16. CONCLUSIONS

  16. The tribunal in assessing whether the respondent had directly discriminated against the claimants had regard to Article 3(1)(a) of the Race Relations (Northern Ireland) Order 1997, which provides for comparison of the respondent's treatment of the two claimants as opposed to the treatment of any other worker. The tribunal is satisfied that the claimants can compare themselves with the treatment of the settled person who was allowed to go into work. Whilst there was no evidence as to the racial make-up of the other workers, the claimants at no stage sought to assert that there were any other members of the Irish Traveller community amongst the workforce or that they were allowed to continue working.

  17. The tribunal is satisfied that the two claimants were identified by Mr Mason as being from a different racial group to the other labourers by asking them where they came from. He had no apparent reason to do so, and the tribunal noted that he made no further enquiry as to where they came from after they told him they were not from Dublin. The tribunal from that lack of further enquiry on his part is satisfied on the balance of probabilities that Mr Mason then concluded that because of the similarity in the accents of people in Dublin with members of the Irish Traveller community, if they were not from Dublin and lived in Northern Ireland then they were probably from the latter group.

  18. The tribunal is further satisfied from the complete absence of any other reason that Mr Mason acting on behalf of the respondent decided on racial grounds to dismiss the claimants. The response of Mr Mason in stating to them that he did not have to give a reason other than that there was no work is also indicative of an attitude of hostility towards them. The ground of no work was in the view of the tribunal demonstrably untrue, given the obvious need to clean up the Odyssey and the fact that the settled person was permitted to go in. The respondent did not seek to rely upon that ground when these proceedings were instituted, seeking instead to justify its behaviour on grounds which in the view of the tribunal were equally spurious and offensive. The tribunal therefore finds that the respondent discriminated against the claimants on the grounds of their race.

    19. THE AWARD

  19. The tribunal in assessing the amount of the award has had particular regard to the case of Vento v Chief Constable of West Yorkshire Police (No 2) [2003] IRLR 102 (a sex discrimination case), in which the Court of Appeal approved the principles on compensation for injury to feelings laid out in HM Prison v Johnson [1997] IRLR 162.

  20. The court in Vento identified three broad bands of compensation for injury to feelings, as distinct from compensation for personal injury. In this case, utilising the guidance in Vento, the tribunal is of the opinion that because of its isolated occurrence and lack of, for example, overt racial abuse, this case falls into the lowest band. Having said that, however, the tribunal regards the conduct as being at the upper margins of that band, given the youth of the claimants at the time, and the fact that because of their lack of educational or other qualifications, they are dependant for their living on this type of casual work.

  21. The tribunal is also of the opinion that the award in this case merits inclusion of an award of aggravated damages. The courts have diverged in their opinions as to whether a separate award is merited or whether such award should be included in the award for injury to feelings. The case of McConnell v Police Authority for Northern Ireland [1997] IRLR 635 provides support for the view that aggravated damages may be awarded where the employer has behaved in a "high-handed, malicious, insulting or oppressive" manner in committing the act of discrimination, as appeared in the case of Alexander v The Home Office [1988] IRLR 190. Of particular note to the tribunal were the cases of City of Bradford Council v - Arora [1989] ICR 443 and Zaiwalli & Company v Walia [2002] IRLR 697, which provide authority for the tribunal to consider the way in which the respondent conducts proceedings.

  22. In the present case, the respondent persisted in its assertion that the claimants were thieves. It adopted this stance from the outset, yet made no apparent attempt to seek or provide even the slightest evidence in support of the allegation. In doing so, the tribunal considers that it has behaved over a period in excess of three years in a manner which is highhanded, malicious and insulting to a degree as bad in the view of the tribunal as the initial act of discrimination on racial grounds.

  23. The tribunal therefore makes a total award of £10,000 to each claimant, to include an amount for aggravated damages. Interest at the standard rate of 8% per annum is awarded from the date of discrimination, namely 24 August 2003, to the date of promulgation of this decision (3 ½ years) which amounts to £2,800.

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

    25. Chairman:

    Date and place of hearing: 18 October 2006, Belfast

    Date decision recorded in register and issued to parties:

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URL: http://www.bailii.org/nie/cases/NIIT/2007/71_04.html