THE INDUSTRIAL TRIBUNALS

CASE REF 6871/09

CLAIMANT:		Denis Judin  

RESPONDENT:	Environmental Fabrication Ltd

DECISION

The decision of the tribunal is that the claimant has failed to satisfy the tribunal that there are facts from which the tribunal could find that there has been unlawful discrimination contrary to Article 52A of the Race Relations (Northern Ireland) Order 1997 as amended and the claim is therefore dismissed. Further the claimant’s claim of unlawful dismissal by the respondent is dismissed.

Constitution of Tribunal:

Chairman:	Ms M Sheehan

Members:	Mr J McKeown
Mr J McAuley

Appearances:

The claimant was represented by a friend, Mr Pazusis

The respondent was represented by Mr G Ridgeway of ELAS Limited.

The Interpreter was Mr Vytautas Uzvalakas.

The Issues

1.     	Was the claimant’s dismissal an automatic unfair dismissal.
 
Was the claimant unfairly dismissed by the respondent in or around 
29 May 2009 contrary to Article 126 of the Employment Rights (Northern Ireland) Order 1996. Was the claimant subjected to less favourable treatment than Noel Elliott on the grounds of the claimant’s race contrary to Article 6 of the Race Relations (Northern Ireland ) Order 1997 (RRO)?

The Facts

2.	The tribunal heard evidence from Mr Barry Duffy, 
Mr Joseph Donaldson, and the claimant. The tribunal was also referred to a number of documents identified  at hearing as R1 (the agreed bundle of documents), R2 (an additional bundle of documents arising from questions of further and better particulars submitted by the claimant), R3, R3A, R4 and R5 as well as diary entries introduced during the oral evidence of the respondent’s witnesses.  The tribunal also heard submissions from representatives for both parties. On the basis of the evidence, we make the following findings of relevant fact in relation to the unfair dismissal and race discrimination issues.

2.1	The claimant was employed by the respondent as a welder fabricator from 14 April 2007 until 29 May 2009 when he was dismissed. The claimant’s terms and conditions of employment which he signed on commencing his employment with the respondent required the claimant to be “ready to start work on site at 08.00am and work a full day”. All employees were expected to clock in each morning and clock out when leaving. The terms and conditions of employment stated “15 minutes will be deducted of any cards clocked between 08.03 and 08.15am and 30 minutes off between 08.17 and 08.30am and so on. In the evening cards clocked before 05.00pm will be deducted by at least 15 minutes”.

2.2	The respondent had an Absence and Notification Procedure. It required that employees must ensure that any absence from work is advised to their Foreman “by telephone as early as possible on the first day of absence (for operational reasons the employer should be notified before 08.30am). 

2.3	The respondent had a disciplinary and dismissal policy and procedure. The company procedure was established to “ensure the fair and consistent treatment of employees who have failed to meet the expected standard with regard to conduct, attendance and job performance”. The policy states the company will “conduct a thorough investigation and will ensure that all of the facts are considered before a decision is made”. Minor faults were to be dealt with informally but “In all cases where informal discussion does not lead to improvement or where the matter is more serious”, the disciplinary process set out in the policy “must be followed”.  The process satisfied the conditions of the statutory dismissal procedure. The policy made clear that an employee’s behaviour was not looked at in isolation but each incident of misconduct is regarded cumulatively, with previous occurrences. The policy then set out four stages of disciplinary outcomes that could be invoked. 

2.4	The policy documentation states “depending upon the severity of the offence, this procedure may be invoked at any stage considered appropriate to deal with the offence in question”.  Examples of Stage 1, a formal oral warning, include “cases of minor breaches of company discipline such as misconduct, performance, poor timekeeping and persistent absence. It should remain on personal record and “will be nullified after 6 months subject to satisfactory conduct and only if there are no further instances of disciplinary action for whatever reason”. Stage 2, a first written warning, may be given where conduct or work performance does not improve or the employee commits a more serious breach of company discipline. This would remain on an employee record for a period of one year. A first written warning “will give details of the complaint and the likely consequences (that is a final written warning) if the terms of the warning is not complied with”. 

2.5	Stage 3 of the disciplinary outcomes available to the respondent is described in the document as follows:- “Failure to improve in response to the procedure so far, or a repeat of action or misconduct for which a warning or warnings have been previously issued, or a first instances of further misconduct, may result in a final written warning”. This final written warning would include “details of the complaint, the length of any probationary period and notification that dismissal may result if the terms of the warning are not complied with”. Such a warning could only be nullified “at the Director’s discretion”. 

2.6	Stage 4 states “Failure to meet the requirements set out in the final written warning will normally lead to dismissal with appropriate notice. A decision of this kind will only be made after the fullest of possible investigations”. 

2.7	Gross misconduct fell outside the four stage process. Examples of gross misconduct included theft, deliberate falsification of records or any other form of dishonesty. The respondent’s policy stated the respondent reserved “the right to summarily dismiss an employee without conducting a disciplinary hearing where it is very clear that an act of gross misconduct has been committed – in such cases the company will confirm their decision in writing and the employee will be given the opportunity to appeal the decision in accordance with the procedure”. 

2.8	The respondent had a list of “General Company Rules”. These included rules governing early leaving, and the responsibility of individual staff members to clock in and out. Rule 9 reads “Any employee found to be clocking or attempting to clock another employee’s time card will be summarily dismissed. Responsibility rests totally with each employee to clock his own card in/out”.

2.9	The respondent operated a computerised system for recording clocking in and out times. When an employee is late, that infringement of the punctuality requirement contained in the terms and conditions of employment was indicated on the computerised records held by the respondent. An “i” indicated that the lateness was classified as an “infringement” lateness. Absences could be classified as either authorised or unauthorised by the relevant line manager. There was no policy which prescribed what level or number of repeat infringements within a prescribed timescale would initiate disciplinary action. 

2.10	The claimant had a record of repeat infringements relating to lateness for work or absences. Between 3 April 2008 and 15 December 2008 the respondent’s computerised records show the claimant was late to work on 24 occasions. The claimant also had a number of unauthorised absences during the same period – in excess of 9 occasions over and above a period of unpaid leave in August 2008. The claimant did not dispute the lack of punctuality but alleged these time infringements occurred either because he missed the transport provided by the respondent company, the transport was late due to other persons or family circumstances delayed him attending work in a timely fashion.  The time he was late for his shift on each occasion varied from between a few minutes to in excess of an hour.  

2.11	On 18 December 2008 Barry Duffy, the respondent’s Workshop manager and claimant’s line manager, held an informal meeting with the claimant. The record of this meeting indicates the claimant accepted that he had been late – but alleged that on occasions he missed his lift due to the minibus driver arriving at different times. The claimant accepted at that meeting the occasions he had been 1 to 2 hours late had been due to family problems. The claimant accepted, at that time, he had not contacted Mr Duffy as required by company procedures. The claimant also accepted during this meeting that, on two occasions either other persons had clocked him in when he was not present at work– and he, having arrived late, had not clocked himself in. The claimant acknowledged he completed his time sheet as if he had been in attendance for the full daily hours. The note of the meeting indicated Mr Duffy advised the claimant he “would get back to him regarding the outcome of my investigation”. No record was available to indicate that Mr Duffy did get back to the claimant regarding the outcome of the investigation initiated in December 2008.

2.12	The computerised time records show the claimant was on time for work from 19 December 2008 until he went on holidays between 
25 December 2008 until 2 January 2009 inclusive. The claimant returned from Christmas leave on 5 January 2009 and was late on the 5, 6 and 7 January 2009. Other employees who travelled on the same transport as the claimant were only late on 5 January 2009. 

2.13	Mr Duffy has a diary record of making an enquiry on 7 January 2009, with the bus driver Noel Elliott, the situation regarding the timeliness of the minibus transport provided by the respondent. The record indicates the claimant alleged to Mr Duffy that the minibus did not come for him sometimes so he had to return home for his own vehicle. This was the explanation tendered by the claimant for being late for work. Mr Elliott is recorded as conceding that situation could have occurred on occasions. However the same record shows Mr Elliott stating that “everyone is lifted even if the times vary slightly but when the claimant was not at the pick up point he would wait if it’s timely but once the other men are collected if tight for time he would not wait for the claimant”. No disciplinary action was taken in relation to these time infringements until 16 January 2009. On that date the claimant is given a letter by Mr Duffy inviting him to a disciplinary hearing to be held on 20 January 2009. Three matters were identified as under consideration – lateness, clocking in infringements on two occasions which resulted in theft of time and money from the company and unauthorised absences. 

2.14	The claimant’s letter included certain documents including a statement from the minibus driver, Mr Elliott, a detailed list of the time infringements, dates of the alleged clocking in offences and absences. All communications were in English. The claimant attended at the nominated time and place – and at no time raised any query with Mr Duffy that he did not understand the communication provided to him. 

2.15	Mr Duffy having worked with the claimant for over two years believed that the claimant’s English was “fairly good” and considered that the claimant understood the communication handed to him by Mr Duffy. 

2.16	A disciplinary hearing was held on 20 January 2009. The record of the hearing was extremely brief. The meeting did not exceed 5 minutes according to Mr Duffy. The record only referred to an enquiry as to why the claimant was “continuously late” and why having attended work late the claimant failed to give “notice or explanation” to Mr Duffy. The record shows the claimant explained his lateness as due to his wife working night shift and sometimes when she returns late from work he is late leaving to catch the minibus. The claimant complained when he uses his car he can get stuck behind “tractor going slow”. The tribunal heard conflicting evidence from the claimant and Mr Duffy as to what other matters were discussed at this disciplinary hearing. 

2.17	On 22 January 2009 the claimant was handed a letter by Mr Duffy advising him that the outcome of the disciplinary hearing was a Final Written Warning for “multiple periods of lateness, clocking in for work by another colleague resulting in attempted theft of time and money from the company and continuous periods of absence”. The claimant was also advised that the timescale for improvement was immediate and the improvement expected is “arrive to work on time every morning, clock in when you arrive and make sure nobody else clocks in for you, attendance must improve significantly and if unable to come to work you must phone the office before 08.00am on each morning of absence”. The claimant was advised in the letter that the likely consequence of insufficient improvement was further disciplinary action and the company “may consider dismissal as part of this process”. The claimant was advised of his right to appeal. No appeal was submitted by the claimant.

2.18	The respondent’s case initially was that the dates included in the January disciplinary hearing were all dates that other employees travelling on the minibus were not late. Equally Mr Duffy understood the unpaid dates of absence listed in the letter issued to the claimant were “unauthorised absences”. However at hearing it became clear that a number of the “”unpaid” absences” related to authorised absences by Mr Duffy for family/dependant child reasons. Mr Duffy could not explain why such authorised absences had been included in the disciplinary process, other than he failed to check the letter close enough. Mr Duffy had been provided with the draft letter by HR personnel in the company. Mr Duffy accepted that he would have authority to change the draft letter. Mr Duffy claimed he accepted the letter in good faith understanding it to include only dates that applied to Mr Judin being late. He signed the letter without doing in his own words “enough background checks”. 

2.19	Prior to being appointed as Workshop manager in November 2007 Mr Duffy had been employed as Workshop foreman. On promotion he was provided with no training in personnel matters. He was provided with no training on equal opportunities. The respondent company at the time employed 25 to 30 employees. 

2.20	Mr Duffy was, at the relevant time in 2008 and 2009, the line manager of Noel Elliott. Mr Elliott was employed as a Welder. Mr Elliott had the main responsibility for driving the company provided transport, a minibus, for other employees – a service for which the employees paid the company out of their earnings. Four other foreign nationals travelled on the same minibus as the claimant and Mr Elliott. At times when Mr Elliott was unavailable to drive the minibus, another employee would drive the minibus, including on occasion the claimant. When the minibus was late – all the employees who travelled on the bus that day were recorded as late and suffered a pay deduction in accordance with their terms and conditions of employment. The tardiness of their arrival could impact adversely on the work output for that day. 

2.21	Subsequent to the issue of the Final Written Warning, the claimant continued to be recorded on the computerised system as arriving late to work. On each occasion Mr Duffy would be aware of the time infringement as the claimant was absent from work when Mr Duffy was allocating the daily jobs.  There were 7 occasions between 20 January 2009 and early April 2009. There were also two unauthorised absences – 16 February and 15 April 2009. On 16 April 2009 Mr Duffy handed to the claimant a letter inviting the claimant to a disciplinary hearing on  20 April 2009. The alleged misconduct was continuous periods of lateness and absenteeism. The claimant was advised of the relevant dates and of his right to be accompanied. The letter clearly stated that the company “may consider dismissal as part of this process”. The letter was in English. The claimant raised no issue at that time that he did not understand the contents of the letter. As requested in the letter he confirmed his attendance at the meeting and attended at the requested time and place. The respondent’s time records show the claimant did not arrive to work on 20 April until 08.09am, which was again a time infringement.

2.22	The written record of the meeting indicates the claimant, at the outset of the meeting, stated he did not wish to have a witness, that he understood and didn’t wish for anyone to accompany him at the meeting. In response to enquiry about his continued lateness for work, the record shows the claimant disputing that he was late. Mr Duffy put questions to the claimant as to why he was late on multiple occasions in a two week period. The claimant’s answers are recorded. Enquiry had been made by Mr Duffy with Noel Elliott, the driver of the minibus, as to the reason for its late arrival. Mr Elliott advised Mr Duffy the bus was late because the claimant wasn’t ready and the claimant had requested the bus wait on him. The record shows the claimant not responding to that information. When questioned about the two unauthorised absences, the claimant is recorded as claiming he had been unwell and requested the day off. 

2.23	No outcome was notified to the claimant in writing on this disciplinary hearing. While the tribunal heard conflicting evidence from the claimant and Mr Duffy as to events subsequent to this disciplinary hearing, the tribunal in light of the diary entry dated 24 April 2009, produced during the hearing by the respondent, was satisfied on the balance of probabilities that Mr Duffy did speak to the claimant on that date to advise him a further opportunity to improve his attendance record would be given. 

2.24	Between 20 April 2009 and 25 May 2009 the respondent’s time records show the claimant recorded as arriving on time until 18 May 2009. The claimant was late on 18 May and 25 May 2009 by five minutes and 4 minutes respectively. On 27 May 2009 the claimant was handed a letter from Mr Duffy inviting him to attend a disciplinary hearing on 
29 May 2009. The claimant was advised that disciplinary action including dismissal would be under consideration with regard to continuous periods of lateness and absenteeism. The dates provided to the claimant were the same dates as those detailed in the letter given to the claimant in April 2009 but also included the two additional time infringements in May 2009.    

2.25	The record of the disciplinary hearing on 29 May 2009 shows the hearing addressed not only the continuing problem of poor timekeeping but also the failure of the claimant, on 25 May 2009, having arrived late to make any attempt to furnish an explanation to Mr Duffy for that lateness. Mr Duffy also raised with the claimant that he completed his timesheet for that date, 25 May 2009, as if he had attended work by 08.00am. The record shows the claimant accepting the time sheet had been incorrectly completed but claiming he had inputted the information incorrectly by mistake. The claimant knew Mr Duffy had seen him arrive late and claimed at the disciplinary hearing he thought he did not need to explain the reasons for his late attendance. The claimant is recorded as accepting there had not been the required improvement in his timekeeping and the same reasons were given – sometimes his wife arrives home late from her job and sometimes the minibus driver is late. Mr Duffy is recorded as indicating on the occasions when he was late due to the minibus the respondent did not consider him at fault. Enquiry was made with the claimant had he understood how serious the matter was when he was issued with the final written warning in January 2009. The claimant is not recorded as indicating a lack of understanding of the seriousness of the matter. Instead the record shows the claimant indicated the problem was usually only a matter of five or ten minutes and he would be happy to work that time up over lunchtime. 

2.26	The meeting was adjourned till after lunch that day. When  the meeting reconvened the claimant was handed a letter advising as he had “failed to give any satisfactory reasons as to why the excessive lateness (9 since the end of January) and absenteeism (2 dates since the end of January) has persisted since being issued with a final written warning in January” a decision had been reached that he was to be dismissed with notice. The claimant was advised of his right to appeal.

2.27	Noel Elliott had a number of unauthorised absences between November 2008 and April 2009. Five absences were detailed on the computerised records – 27 November 2008, 23 January 2009, 24 January 2009, 30 January 2009 and 23 March 2009. Two of those dates – 23 January 2009 and 30 January 2009 were dates included in the April and May 2009 disciplinary hearings for the claimant as dates the claimant was late arriving at work. Other employees who travelled on the same minibus also were clocked in on those dates at the same time as the claimant. The respondent’s personnel records show that Mr Duffy on 31 March 2009 conducted a disciplinary procedure against Mr Elliott for “failing to comply with the company policy in reporting absences”.  The disciplinary record of the 3 April 2009 meeting with Mr Elliott records that the previous year Mr Elliott had received a verbal warning for the same issue. The outcome of the 3 April 2009 disciplinary hearing for Mr Elliott was a further verbal warning for a 12 month period. 

2.28	In August 2009 Mr Elliott was again invited by Mr Duffy to attend a disciplinary hearing for failure to comply with the reporting procedure for absence at work.  The outcome of that disciplinary hearing was not recorded in writing. Mr Elliott was invited to attend a disciplinary hearing on 1 March 2010 for exactly the same breach of company policy. On that occasion he was issued with a written warning for a 12 month period. One month later Mr Elliott had been allocated work requiring him to travel to Poland on 2 April 2010. Mr Elliott did not turn up – nor did he contact the company in accordance with absence notification policy. By letter dated 26 April 2010 Mr Elliott was invited to a disciplinary hearing to take place that same day. The letter was signed by Paul McCandless. The note of the relevant disciplinary hearing is dated 28 April 2010. The outcome of that disciplinary hearing was a final written warning valid for a 12 month period. Mr Elliott later received a letter from Mr Duffy dated 24 June 2010 referring to further failures on the part of Mr Elliott to comply with the company policy regarding notification of absences. The letter referred to an unauthorised absence pre 16 June 2010 and a further absence between 16 June and 24 June 2010. The letter states “having given you the benefit of the doubt twice in the space of a week that in the event a similar incident occurs in the future I will have no alternative but to commence the formal disciplinary procedure, which will include your dismissal from our employment”.   

2.29	 The claimant appealed the decision to dismiss. In his letter of appeal he requested an interpreter for the appeal hearing. The letter indicating his wish to appeal acknowledged he was late for work on a number of occasions but he disputed “excessive lateness”. The claimant indicated he understood he “should plan my time for getting to my employment better”. 

2.30	The appeal was dealt with by Mr Donaldson, the Managing Director of the respondent company. The appeal hearing was on 10 June 2009.  Present were Mr Donaldson, Lisa Currie, from the human resources side of the respondent company, the claimant and Mr Liueas an interpreter.  At the appeal meeting the claimant was requested to clarify his grounds of appeal. The only ground of appeal recorded as mentioned by the claimant was he did not believe he should be dismissed for being five minutes late. The only reason given initially for lateness at the appeal hearing was that the claimant was late due to looking after his child until his wife returned home from her work. Near the end of the appeal hearing the claimant made an allegation that Barry Duffy did not like him and was treating him differently to Mr Duffy’s brother who arrived to work drunk.

2.31	Mr Donaldson has held the post of Managing Director in the respondent company for in excess of 16 years. Arriving to hear the appeal Mr Donaldson was aware that the claimant had been late 36 times in a 14 month period, given a final written warning in January 2009 and late 9 times after receiving that final written warning. Mr Donaldson knew there were instances of the clocking records for the claimant not tallying with the daily time sheets. While the time sheets were not disclosed to the claimant, the claimant had accepted to Mr Duffy that he had completed the sheets incorrectly. 

2.32	Mr Donaldson’s reaction to the allegation of different treatment by Mr Duffy was to make investigations in relation to the allegation made by the claimant and Mr Liueas. As part of that investigation he spoke to Mr Duffy and looked at the records for the minibus. On Mr Donaldson’s analysis of the minibus record, he concluded the records showed 8 to 9 times Mr Elliott late and 30 odd times the claimant was late. Mr Donaldson made no note of any of his conversations or investigations with any relevant personnel. Mr Donaldson was aware that the level of English fluency for the claimant was better than some other employees. While employed with the company the claimant was able to complete his own time sheets and had completed health and safety training as well as a Fork lift training course, in English. 

2.33	Mr Donaldson had not heard an appeal prior to the claimant’s. Mr Donaldson had attended no training for the conduct of appeal hearings. The company has a contract of services with human resource advisers and Mr Donaldson relied on their advice as to the conduct and disposal of the appeal hearing. A Julie McCombe was the person identified whom Mr Duffy and Mr Donaldson relied on for advice. Mr Donaldson had an issue with the claimant’s inaccuracy on his time sheets. The conclusion on the claimant’s appeal was the decision to dismiss by Mr Duffy was upheld by Mr Donaldson.

2.34	The outcome of the appeal was sent to the claimant on 12 June 2009. Mr Donaldson recorded in his letter, upholding the decision to dismiss, that even if he were to overlook the various latenesses of the claimant due to his childcare problems, he “could not condone the level of absenteeism over the last 14 months in addition to the periods where you were late“ but booked a full day on his time sheets.

2.35	Mr Donaldson received a further communication from the claimant dated 30 July 2009 which referred to the claimant’s dismissal on 29 June 2009. The letter alleged the claimant had suffered discrimination from Mr Duffy. The claimant wrote alleging not only that his dismissal was unfair but that he had been discriminated against because of his nationality. In this letter the claimant “firmly denied being clocked in by another worker”. The claimant contended that as the manager disliked him “a reason was created to merit my dismissal”.
 
2.36	Mr Donaldson conducted some further investigation on foot of this letter. His investigation involved reviewing certain documents – including files of other foreign nationals employed by the company - to ascertain if any common denominator existed. He found none. Mr Donaldson reviewed all the documents relating to the claimant’s dismissal including “my investigation minutes with Barry Duffy after the appeal hearing, regarding the discrimination claim” and concluded that there was no foundation for the claimant’s allegations. A letter dated 4 August 2009 was sent to the claimant notifying him of Mr Donaldson’s conclusions on his allegations. The letter dismissed the grievance and confirmed the earlier appeal decision.       
		
2.37	Mr Donaldson in reaching his conclusions relied on the information and advice provided by outside human resources advisers.  He accepted in his evidence that the process could have been managed better. He did not however believe he would have come to a different conclusion.    

2.38	The tribunal heard no direct evidence from the staff in human resources who provided the records of lateness and absenteeism which were relied on by both Mr Duffy and Mr Donaldson during the disciplinary hearings and the final appeal.  

2.39	The claimant’s final written warning related exactly to matters that had led to his dismissal. Any potential breach of the respondent’s stages of the disciplinary process had occurred when the claimant was progressed from an informal discussion to stage 3 of the disciplinary procedure. However the claimant had chosen not to appeal the final written warning. There was no procedural breach in the conduct of the disciplinary procedure followed by the respondent post the 20 January 2009 disciplinary hearing concluding with the hearings in May and June 2009. 

2.40	The claimant had two opportunities to get the minibus for work. One pick up point was at the start of the bus route and one at the end of the route when other co-workers had been lifted. The claimant accepted that he had a record for lateness while Mr Quinn was his line manager – but thought as no action had been taken against him for lateness the childcare problems that arose if his wife was late from her work was understood by his employer. The claimant, even when on a final written warning, did not seek to ensure that he caught the minibus at the second pick up point.

2.41	The claimant had not required the services of an interpreter when applying for his post. Throughout his time with the company the claimant appeared to those in management and in daily contact with him to be capable of understanding more English than many of the other foreign nationals employed in the company. The claimant called no witnesses to support any of the allegations he made concerning differential treatment by Mr Duffy or that the punctuality of the bus was affected more by Mr Elliott’s actions than his own.  

Submissions

3.	The parties made oral submissions at hearing. The respondent relied on British Home Stores v Burchell and asserted the claimant was dismissed for a potentially fair reason – conduct. While the respondent accepts that some absences taken into account by the respondent were in fact authorised absences, the impact of those absences being removed would not have affected the outcome. The decision to dismiss was one which fell within the range of reasonable responses. The claimant’s English was sufficient for him to understand the company’s requirements and the claimant was evasive and vague as to the multiple occasions where he was responsible for the tardy arrival of the minibus. The burden of proof in relation to the allegation of race discrimination rests with the claimant. The contention that the claimant received less favourable treatment to Mr Elliott is incorrect. Both of them were disciplined but for different breaches of the respondent’s policy. No prior complaint had been made during his employment re race discrimination. The tribunal was referred to Bunitt v West Birmingham Health Authority [1994] IRLR 7 EAT. The claimant was dismissed not because of his race but because of his conduct – namely his absence and lateness were double that of his nearest rival. His employer the respondent had tried and failed to get the claimant to attend work on time. 

3.1	It was submitted on behalf of the claimant that the company procedure must be followed, that the claimant “must get” a verbal warning then a first warning, second warning and final written warning before he is vulnerable to dismissal. The claimant should have had six months to improve his attendance and solve his problem. The claimant did not understand the procedure. Even Mr Duffy was getting advice from a company on the procedure so it was wrong of the respondent and the tribunal to expect the claimant to understand it. Mr Elliott was given a lot of chances to improve and the company procedure was followed regarding the level of action taken against him. The claimant was treated differently. He received one warning and was then dismissed. The claimant was late more often than other workers because he missed his bus, his wife was late or he had to return home for his car. There was no limit in the claimant’s contract as to how much a person could be late. There was no prescribed level of unacceptable absence or lateness. Other employees who were late were not disciplined like the claimant.	

The Law

Race Discrimination

4.	The relevant law is to be found in Article 3 of the Race Discrimination (Northern Ireland) Order 1997 and in Article 52A of the Race Relations (Northern Ireland) Order 1997 as amended by Article 40 of the Race Relations Order (Amendment) Regulations (Northern Ireland) 2003.  The relevant provisions read as follows:-

“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 then he treats or would treat any other persons;

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

(i)	which is such that the proportion of persons of the same racial group as that other who can comply with it is considerably smaller than the proportion of persons not of that racial group who can comply with it; and

(ii)	which he cannot show to be justifiable irrespective of the colour, race, nationally or ethnic or national origins unto the person to whom it is applied; and

(iii)	which is to the detriment of that other because he cannot comply with it.”    

4.1	The law in relation to the burden of proof in race discrimination cases is set out at Article 52A(2) of the Race Relations (Northern Ireland) Order (as amended) and provides as follows:-

“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 or 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.”

4.2	In summary, under the terms of the Race Relations (Northern Ireland) Order 1996 a person discriminates against another if on racial grounds he treats that other less favourably than he treats or would treat other persons.  Racial grounds mean colour, race, nationality or ethnic or national origins.  The claimant must show that he has been treated less favourably than the person or persons with whom he compares himself.  The comparator, actual or hypothetical, should share the characteristics of the claimant which are relevant to the case.  

4.3	The claimant must also establish that any less favourable treatment was by reason of the proscribed ground.  Unreasonable treatment does not of itself give rise to an inference of unlawful discrimination.  The Court of Appeal provided guidance on how to apply the burden of proof in discrimination cases in Igen v Wong [2005] EWCA Civ 142.  The claimant must show facts from which the tribunal could, in the absence of an adequate explanation, conclude that the respondent had committed an unlawful act of discrimination.  Once the tribunal has so concluded, the burden then shifts to the respondent to prove that he did not commit an unlawful act of discrimination. 

	The Court of Appeal in the case of Madarassy v Nomura 	International PLC [2007] IRLR 246 said

 “The bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination.  They are not, without more, sufficient material from which a tribunal ‘could conclude’ that on the balance of probability 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.”

	In the case of Laing v Manchester City Council [2006] IRLR 748 Mr Justice Elias said:–

“The focus of the Tribunal’s analysis must at all times be the question whether or not they can properly and fairly infer race discrimination.  If they are satisfied that the reason given by the employer is a genuine one and does not disclose either conscious or unconscious racial discrimination, then that is the end of the matter.   It is not improper for a Tribunal to say, in effect ‘there is an nice question as to whether or not the burden has shifted, but we are satisfied here that even if it has, the Employer has given a fully adequate explanation as to why he behaved as he did and it has nothing to do with race.”

	In the recent decision of the Northern Ireland Court of Appeal in the case of Nelson v Newry and Mourne District Council [2009] NICA24 Lord Justice Girvan referred to the Court of Appeals decision in Madarassy and then said:–

“This approach makes clear that the complainant’s allegations of unlawful discrimination cannot be viewed 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 properly conclude, in the absence of adequate explanation, that the respondent has committed an act of discrimination.”  

		In Curley v Chief Constable [2009] NICA 8 Coghlan LJ emphasised the need for a tribunal engaged in determining this type of case to keep in mind the fact that the 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 63A.  The tribunal’s approach must be informed by the need to stand back and focus on the issue of discrimination.

	The case law makes it clear that the tribunal must look not only at the allegations made by the claimant in his evidence but also at any evidence adduced by the respondent which tends to support the claimant’s case.  They must look at all the evidence adduced in the case to consider whether, in the absence of adequate explanation from the respondent, the respondent has committed an act of unlawful discrimination against the complainant.  However the case law also makes it clear that it is for the claimant to prove facts from which the tribunal could make a finding of discrimination in the first instance.  

Unfair Dismissal

4.4	The tribunal considered the provisions of Article 130A of the Employment Rights (Northern Ireland) Order 1996 which states that an employee such as the claimant who has been dismissed shall be regarded as unfairly dismissed where the statutory dismissal procedure applied; was not completed by the respondent and the non–completion is wholly attributable to the failure of the respondent to comply with the statutory requirements. 

4.5	Article 130A(2) states that failure by an employer to follow the statutory dismissal procedure shall not be regarded for the purposes of Article 130(4) of Employment Rights (Northern Ireland) Order 1996 as by itself making the employer’s action unreasonable and therefore unfair if the employer can show that the employee would have been dismissed had the procedure been followed. 

4.6	In determining that question the tribunal has had regard to the provisions of Article 130 of the Employment Rights (Northern Ireland) Order 1996. It provides that it is for the respondent to show:- 

(i)	The reason for the dismissal of the claimant; and

(ii)	that it is a reason falling within Article 130(2) of the Employment Rights (Northern Ireland) Order 1996 or “some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held”.  

4.7	Under Article 130(2) of the Employment Rights (Northern Ireland) Order 1996 the respondent must show that there is a potentially fair reason for the dismissal.  In this case the reason is conduct.  The tribunal should also determine whether the employer has acted reasonably in all the circumstances in dismissing the claimant.  The tribunal must not substitute its own view for that of the employer.  

4.8	Article 130[4] provides as follows:–

“Where the employer has fulfilled the requirements of Paragraph (1), the determination of the question of whether the dismissal is fair or unfair (having regard to the reason shown by the employer)–

a.	depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and 

shall be determined in accordance with equity and the substantial merits of the case. “ 

4.9	British Home Stores v Burchell (1980) ICR 303 has established a three fold test that must be satisfied if dismissal of the claimant, by the respondent, for a reason relating to conduct is to be fair. The respondent must show that he had a genuine belief on reasonable grounds after reasonable investigation that the claimant's behaviour justified dismissal. 

4.10	The burden of satisfying the tribunal that it is a fair dismissal in the terms of Article 130(4) of the Employment Rights (Northern Ireland) Order 1996 is cast in neutral terms. It is not placed on the employer. Iceland Frozen Foods v Jones provides that the reasonableness of the employer’s conduct has to be considered as to whether it falls within the band of reasonable responses for the employer. Equally the tribunal has to consider whether the sanction imposed falls within the band of reasonable responses for an employer. In addressing that test the tribunal noted that while Harvey on Employment law puts much weight on the Codes of Practice, there are also decisions, which indicate that a breach of procedure must be “sufficiently important that injustice is done or the reasonableness of the procedure is brought in to question”.

Decision

5.		In this case the parties had agreed at a Case Management Hearing held on 12 March 2010 a list of factual issues which the tribunal was to resolve. Those matters formed the basis of the claimant’s claim for unfair dismissal  and unlawful race discrimination. 

5.1	The claimant, at hearing, had to seek leave to make substantial amendments and additions to his prepared statement of evidence. Further certain assertions made at the outset of the hearing by the claimant, as to how and when letters inviting him to disciplinary hearings were made and interaction with his previous line manager Larry Quinn, were all reciled from during his evidence at hearing. The claimant’s record of late infringements far exceeded any of the other employees who caught the same transport as the claimant. The claimant was not an impressive witness particularly when questioned as to why he did not lay the blame for his tardiness squarely on Mr Elliott during his disciplinary hearings, like he did at the tribunal hearing.  

5.2	The claimant was recorded as having provided no response at any of the disciplinary meetings when the comments made by Mr Elliott that the claimant was responsible for the bus being late were stated. At the tribunal hearing he equally “couldn’t say” or “can’t remember” why he did not blame Mr Elliott in the way that he was casting blame for his tardiness at the tribunal hearing. The claimant in answers to cross examination confirmed he did understand why he was being called to the disciplinary meetings on 20 January 2009 and onwards. In his examination in chief and his prepared statement the claimant never made the express contention that he was treated the way he had been by the respondent because of his race. Throughout his cross examination the claimant asserted, not in a particularly credible way, that he could not remember what letters were given to him prior to the meetings, when documents were given to him, the conduct of the meetings and what information he was told. At an earlier time in his evidence to the tribunal he had asserted expressly that such information was not given to him. 

5.3	There was direct conflicting evidence as to what occurred post the April 2009 disciplinary hearing. The claimant was pressed to explain why many of the complaints he made at hearing regarding the jobs allocated to him by Mr Duffy were not included in his appeal hearing, letter of grievance or his prepared statement. The claimant could not explain why they were omitted or not previously mentioned. The claimant conceded at hearing that he was wrong to have completed his time sheets incorrectly. 

5.4	We have considered carefully the evidence adduced by the claimant.  It is clear to the tribunal that there were occasions during the period 29 May 2008 to 29 May 2009 that Mr Elliott, like other persons travelling on the company minibus, was late for work. 

5.5	The tribunal reviewed the disciplinary records provided to the tribunal and it concluded that Mr Elliott did not receive a disciplinary sanction for being late for work. Mr Elliott did receive a disciplinary sanction for failing to adhere to the respondent’s absence reporting procedure. Mr Elliott did not receive a disciplinary sanction for being late to work on the basis of the investigation carried out by the respondent. The respondent concluded that the claimant was the person responsible for the minibus being late, not Mr Elliott. 

5.6	It would have been preferable that all the persons travelling in the minibus were approached as part of the investigation and all conversations with any of the relevant staff had been recorded by Mr Duffy. However while there was no note of any conversation with Mr Maciulouitis – the tribunal found Mr Duffy a credible witness and accepted his evidence on this issue. It was clear from the time records for all those travelling on the minibus, that the claimant was disciplined for lateness on occasions when the minibus was late. However within that period there were at least 14 out of an alleged 27 occasions where only the claimant was late. The other employees who travelled on the minibus arrived in work on time. The tribunal did not find the claimant credible when he asserted he contacted his manager to advise that he would be late. The difference in number of occasions when other employees travelling on the minibus were late undermines the claimant’s contention that he was only late on a “few occasions” and that he was “late mostly because of the minibus”. 

5.7	The real issue in this case of alleged unfair dismissal is the reasonableness of the respondent’s conclusion, as a result of their investigation, as to the underlying reason for the minibus being late. The respondent’s witnesses contend that the minibus was late more often than not because of the actions of the claimant. The tribunal noted the claimant had in excess of 100% more infringements than any other employee travelling on the minibus. Between 20 January 2009 and 20 April 2009, at least two of the employees travelling on the minibus are timed as arriving at work at the same time as the claimant for the occasions detailed on the letter inviting the claimant to the April 2009 disciplinary hearing. The claimant did not challenge Mr Duffy when he advised the claimant at the April disciplinary hearing that Mr Elliott lay the blame for the “lates” at Mr Judin’s timekeeping. The claimant did not challenge at the tribunal hearing that he had indicated to the respondent at the disciplinary hearings that he understood events and did not wish to be accompanied at the hearing. In light of the claimant’s work history the tribunal had no evidence available to undermine the reasonableness of the employer taking the claimant and his responses at face value. The respondent was faced with an employee who failed to challenge his employer when advised he was being blamed by co-workers for the minibus being late from 23 January 2009 to 2 April 2009. 

5.8	The tribunal find that Mr Duffy, despite what he advised the claimant at the disciplinary hearing in May 2009, did take into account occasions when the minibus was late. However the tribunal concluded Mr Duffy had a genuinely held belief, having spoken with the minibus driver and one other employee that it was generally the actions of the claimant that resulted in the minibus being late arriving at the work place. It was also clear to the tribunal that in the absence of a prescribed number of time infringements and/or absences initiating the disciplinary process there was potential for inconsistent application of the disciplinary policy. It was clear Mr Duffy was aware of the practice of those who travelled on the minibus – having one member of staff clock in all those other members who travelled normally on the minibus. No disciplinary action was ever taken against any of those employees despite the express company rule on this practice. 

5.9	There was no evidence that anyone in a management position in the respondent company had attended any training in investigating disciplinary matters or holding disciplinary hearings or appeals. It was clear no guidelines or memos were issued to the staff in relation to the disciplinary policy. Instead Mr Duffy in effect did what someone in human resources or an outside adviser “told him to do”. He went to a Stage 3 hearing on the advice of human resources personnel.  Mr Donaldson also relied on his human resource advisers to guide him through the disciplinary process. 

5.10	The tribunal heard conflicting evidence as to events post the April 2009 disciplinary hearing. The tribunal saw the diary note alleged to have been made by Mr Duffy on 24 April 2009 (R2). The tribunal heard the oral evidence of both Mr Duffy and the claimant on this matter. While it is true that the respondent’s witnesses should have disclosed these diary entries at an earlier time, the tribunal observed the demeanour of Mr Duffy in giving his evidence - direct and open about the deficiencies in the process. In contrast the claimant in his prepared statement refers to obtaining a second warning which could only have been a reference to the April disciplinary hearing and its outcome. At the hearing in cross examination he asserted no outcome was notified and no conversation took place with Mr Duffy post the April 2009 hearing. The tribunal considered the claimant gave his evidence and responded to enquiry from the tribunal in a vacillating manner.  The tribunal did find the ad hoc manner in which the diary entries were introduced at hearing unsatisfactory and a cause for concern as to their legitimacy. However having viewed the original diary entry and heard all the evidence the tribunal, on the balance of probabilities, was satisfied that the diary entries were true and accurately reflected the history of events within the respondent company. On that basis the tribunal was satisfied that the respondent company did convey to the claimant on 24 April 2009 that he would be given another chance – a short period to improve his timekeeping. 

5.11	The claimant was then late again in May 2009.  On both occasions no one else travelling on the minibus was late. The claimant also made a further incorrect entry on his daily time sheets for 25 May 2009. The tribunal was advised at the outset of the hearing that the claimant was adamant that the letter inviting him to the disciplinary hearing on 29 May 2009 was handed to him that morning by Mr Duffy. The claimant withdrew this assertion during cross examination and claimed he could not remember the date or manner in which the “Step 1” letter was handed to him. In contrast Mr Duffy was insistent and consistent that the letter like all other communications was handed to the claimant by Mr Duffy on the date the letter was dated – in this instance 27 May 2009. The tribunal concluded on the balance of probabilities, in light of the procedure adopted for past letters, that Mr Duffy’s recollection of events was correct. Therefore this dismissal is not an automatic unfair dismissal. 

5.12	The invite to the May 2009 disciplinary hearing stated the meeting was to address two matters – continuing lateness and unauthorised absences. It is clear from the record of the disciplinary meeting that the continued failure of the claimant to be diligent regarding the accuracy of his daily time sheets was also raised as a concern of management. The claimant was not disputing that he had two time infringements and two absences – which had not been authorised prior to the morning of the absence. The tribunal was satisfied that the claimant had raised child care issues when seeking a longer period of leave in August 2008. However the tribunal could not be satisfied on the balance of probabilities that the claimant had raised childcare issues at any subsequent time other than in the most general terms with his employer. 

5.13	The claimant was placed on a final written warning from January 2009. The claimant argues the respondent appears not to have followed in a sequential fashion the prescribed steps laid down in the written disciplinary documentation. Stage 1 is the only step which reads “A oral warning will be issued in cases of minor breaches…”. All the other steps refer to what “may” be the outcome. However the tribunal noted that clocking in offences as well as falsification of company records are both conduct highlighted as potential gross misconduct. Therefore as the matters to be raised in the January 2009 disciplinary meeting included inaccurate completion of daily work sheets, such conduct could and would justify the respondent moving to a different step in the procedure. 

5.14	The claimant had not exercised his right of appeal in respect of the final written warning. The tribunal noted there were further absences and late arrival to work post the final written warning for such conduct. In particular when the “second chance” was given in April 2009, the claimant managed only three weeks before he was late for work on 18 May 2009 and again on 25 May 2009. It is noteworthy that those time infringements were for 4 and 5 minutes respectively. The tribunal considered it reasonable to conclude that the claimant was aware of the importance of punctuality and had made a greater effort to avoid being late. However it appeared to the tribunal having been given another chance in April 2009 the claimant couldn’t manage to complete one month without a further time infringement occurring. While it is clear the respondent’s witnesses did not do the analysis this tribunal did of the time records of other employees, they did reach the same conclusion, from the information in their possession and their contact with employees – that the claimant’s time infringements were persistent and far greater in number than any other member of staff travelling on the minibus. 

5.15	The claimant did appeal his dismissal. The appeal letter indicated that the appeal related solely to the respondent’s conclusions regarding the claimant’s record for lateness. It appeared he was accepting the allegation of unauthorised absences. Mr Donaldson was hearing his first appeal. He appeared to the tribunal to be a man well motivated to do the “right thing” but relying on advice and guidance from his human resource advisers to perform his role correctly. His approach was to consider any new or additional information provided by the claimant – to assist his determination whether dismissal was the “right” penalty. In reviewing the disciplinary records he observed that the April 2009 record showed no mention of childcare and no response from the claimant when told Noel Elliott stated the claimant was the cause of the bus being late. The May record shows the claimant asserting he was late either because his wife was late or “sometime Noel late”. Mr Donaldson was aware of the inaccurate daily time sheets and this did play a part in his conclusions on the appeal. The claimant knew this was an allegation made against him and he never denied that the inaccuracy on the daily work sheets had occurred. In the circumstances, the tribunal was satisfied that the appeal hearing was fair and adequate. The claimant raised no allegation of racial discrimination at the appeal hearing – nor indeed were any of the examples of differential treatment provided to the tribunal at hearing raised at the appeal hearing. In the circumstances of this case dismissal fell within the band of reasonable responses for an employer faced with the actions of the claimant. The conclusion that Mr Donaldson reached to uphold the decision to dismiss cannot be said to be a decision that no reasonable employer could reach. 

5.16	The tribunal recognises that it is the claimant’s responsibility to prove facts from which the tribunal could conclude there has been unlawful discrimination.  The facts in this case are that the claimant was disciplined for continuous time infringements and unauthorised absences as well as inaccuracies on his time sheets which occurred over a year. There were in excess of 36 separate occasions. The identified comparator, Mr Elliott, had far less late occasions recorded against him. Mr Elliott was disciplined for a different breach of the company rules – the reporting absence procedure. The company disciplinary procedure gives specific examples of “minor breaches” of company discipline “poor timekeeping and persistent absence”. The tribunal, in light of the diary entries, were satisfied that the claimant had at least two informal conversations with Mr Duffy regarding his time keeping in the late part of 2008. The next instance post December 2008 when the same conduct occurred was immediately upon the claimant’s return to work on 5 January 2009 – when the claimant was late on three consecutive days. The policy reserved the right of the company to invoke the policy – depending on severity of the offence - “at any stage considered appropriate to deal with the offence in question”. Inaccurate time sheets could be perceived as potential gross misconduct. Steps 2 onwards give no mention that the steps are sequential. However step 1, unlike the other steps in the procedure states minor breaches “will” be dealt with by verbal warning. Mr Elliott was accorded the benefit of Step 1 in the procedure. Mr Duffy in his evidence could give no example where anyone else was dealt with by going straight to Step 3 of the procedure. He accepted that he went to that stage in the procedure – because the human resources personnel advised him to do so. 

5.17	The tribunal considered whether the circumstances of the claimant were such that the relevant circumstances of his identified comparator – Mr Elliott – “are the same or not materially different”. Both the claimant and Mr Elliott were welders and under the direct line management of Mr Duffy. Both committed breaches of the conduct requirements of the respondent. However they did not commit breaches of the same rules. The tribunal, in light of the original diaries produced at hearing, know that other employees like Mr Elliott, including foreign nationals, were spoken to re non-compliance with the absence notification procedure but without formal disciplinary process being commenced. The fact that the claimant and Mr Elliott were disciplined for different breaches of the respondent’s rules does in the opinion of this tribunal make a material difference in their circumstances. There was no evidence that Mr Elliott had inaccurately completed his time sheets. Accordingly on a balance of probabilities, the tribunal concluded that the claimant did not receive less favourable treatment in the manner in which he was disciplined in 2009 by the respondent company.
 
5.18	However, if the tribunal is wrong in that conclusion the tribunal also went on to consider the evidence as to the reason for the alleged less favourable treatment. The tribunal was faced with an employer who has other foreign nationals working in the company. There was no evidence that those other foreign nationals were subjected to the disciplinary procedure in the way the claimant was. There was no evidence of a non-welcoming work environment. The claimant at hearing, but not while working for the respondent, complained that he was “picked on to cut steel”. However the claimant accepts he did that task also while under different supervision. Evidence was given that his work conditions were adjusted by the respondent by being provided with a bench for the execution of his work. No evidence was given of racial abuse or harassment. There was an absence of evidence called by either party to assist the tribunal in determining whether this was the first and only occasion that the respondent did not comply with their disciplinary procedure when dealing with persistent lateness and unauthorised absence. The claimant claims that he was subjected to this mode of discipline because of his nationality. However the work colleagues on the minibus didn’t receive warnings and at least one of them was the same nationality as the claimant. The other examples of alleged “less favourable treatment” provided at hearing – always allocated the cutting of steel and not being told directly by Mr Duffy of overtime – were not matters mentioned in the claim submitted to the tribunal or mentioned in his evidence in chief. The tribunal in those circumstances gave the allegations little if any credence. The tribunal is satisfied that the claimant has failed to prove facts from which the tribunal could make a finding of discrimination in relation to the disciplinary procedure followed by the respondent in respect of the claimant and/or the terms and conditions provided during his employment. 

5.19	It is for the claimant to prove facts from which the tribunal could conclude that there has been unlawful discrimination on grounds of his race.  The tribunal is not satisfied that the claimant has proven such facts.  The tribunal noted that once the claimant was on a final written warning, just like Mr Elliott, he was given another chance to improve. His punctuality and absence record was considerably worse than his comparator Mr Elliott – at the time the final written warning was issued in January 2009 to the claimant. The claimant was dismissed not because of his race – but because he failed to improve his punctuality as required in his terms and conditions of work. The claimant continued to be late and to cause others to be late in attending work. The claimant continued to make inaccurate entries to his daily work sheets, when he knew he had arrived late to work and did not clock himself in to work. There is no doubt the persons involved in the disciplinary process had received no training and were not experienced in the procedure but any deficiency in their procedures was not related to the claimant’s race.  

5.20	In conclusion the tribunal is not satisfied that the claimant has proven facts from which we could infer that unlawful discrimination on grounds of race has occurred. Accordingly both the claimant’s claim of Race Discrimination and unfair dismissal are dismissed. 

Chairman:

Date and place of hearing:   2-5 and 12 August 2010,  Belfast. 

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