THE INDUSTRIAL TRIBUNALS

CASE REF:	203/11

CLAIMANT:			Tadas Ivanauskas 

RESPONDENT:		MCR Personnel

DECISION
The unanimous decision of the tribunal is that the claimant’s claim of discrimination and/or harassment, pursuant to the Race Relations (Northern Ireland) Order 1997 is dismissed.

Constitution of Tribunal:
Chairman:		Mr N Drennan QC
Members:		Mr E Grant
			Mrs B Heaney

Appearances:
The claimant did not appear, but was represented by Dr B Garvey, Trade Union Official, of The Independent Workers Union.
The respondent did not appear and was not represented.

Reasons

1.1	The claimant presented a claim to the tribunal on 30 December 2010.  Following an order, issued to the parties on 29 March 2011, the tribunal dismissed Geoffrey Doyle as a respondent and joined MCR Personnel as a respondent to the proceedings.  By a decision recorded and issued to the parties on 29 March 2011, the claimant’s claim of unauthorised deduction from wages and/or breach of contract were dismissed by the tribunal, following withdrawal orally by the claimant’s representative at a Case Management Discussion held on 21 March 2011.  The respondent, MCR Personnel, who were joined, as set out above, did not present a response to the tribunal and was therefore not entitled to take any part in the proceedings, save as set out in Rule 9 of the Industrial Tribunals Rules of Procedure 2005, contained in the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005.  The respondent was given notice of this hearing by a Notice dated 21 June 2011; but did not attend the hearing.  

1.2	The claimant did not appear at the hearing of this matter and his representative declined, when invited if he wished to do so by the tribunal, to make any application for a postponement of the hearing to enable the claimant to attend.  

2.	The claimant’s representative accepted that the main focus of the claimant’s claim against the respondent, which had to be determined by the tribunal at this hearing, was the claimant’s claim of unlawful discrimination and/or harassment, pursuant to the Race Relations (Northern Ireland) Order 1997 (‘the 1997 Order’) relating to the contents of a telephone call the claimant had received from an employee of the respondent on 1 October 2010.  The claimant’s representative did not have a transcript of the telephone call; but he was in a position to play a recording of the telephone call on his Blackberry mobile phone.  Unfortunately, it was not possible for the tribunal to make a recording of the telephone call for itself.  However, the tribunal, having listened to the recording of the telephone call, was satisfied that the recording related to the telephone call referred to in the claimant’s claim form; and the tribunal decided, in the circumstances, to admit in evidence the said recording of the telephone call to the claimant, which was made by the claimant’s representative on his mobile phone.

3.1	Having heard the said recording and, in the absence of the claimant, and after considering the terms of the claimant’s claim form and correspondence between the parties and/or their representatives, the tribunal made the following findings of fact, as set out in the following sub-paragraphs, insofar as relevant and material to the determination of the claimant’s claim.

3.2	The claimant, a Lithuanian, was employed by the respondent, which is a major recruitment company in the construction industry, operating in Northern Ireland, with a head office in Dublin, at the Bowen Construction site on the Upper Malone Road, Belfast, from Monday 27 September 2010.  On Friday 1 October 2010, the claimant informed the foreman for Bowen Construction that he has been offered a full-time post with another employer beginning on Monday 3 October 2010, which would have been the next working day for the claimant.  Later on 1 October 2010, the claimant received a telephone call, which was the subject of the recording referred to above, from an employee of the respondent, who was a member of the administrative staff of the respondent and who was subsequently identified, in correspondence, as Dan.  The telephone call was abusive and littered with profanities and expressed in totally unsuitable and intemperate language Dan’s exasperation and annoyance of the lack of notice by the claimant that he would not be available to work for the respondent on Monday 3 October 2010; and with the consequence that the respondent would be unable to obtain a replacement for the claimant in time to start work on Monday 3 October 2010.  Dan, in the telephone call, further stated to the claimant that, given the lack of notice, he was not prepared to pay the claimant for the work that the claimant had done; and he concluded the telephone call by saying the claimant could “go through every court in this country but he would not pay him a f****** penny”.  Significantly, in the tribunal’s opinion, for the purposes of determination of these proceedings, there was no reference whatsoever, during the course of this telephone call, to the fact that the claimant was Lithuanian.  Indeed, having listened to the recording of the telephone call, the tribunal was satisfied the reason for the telephone call by Dan, the respondent’s employee, was nothing to do with the claimant’s race, ethnic or national origin, but rather it was solely due to Dan’s annoyance of the lack of notice by the claimant which, because of the weekend, meant Dan was unable to get a replacement for the claimant to start work at the Bowen Construction site on 3 October 2010.  Further, it was apparent during the course of the telephone conversation that, if the claimant had been prepared to work on 3 October 2010 at the Bowen Construction site, that would have been sufficient to enable to the respondent to obtain a replacement for the claimant on 4 October 2010.  The tribunal was further satisfied that Dan, in making the telephone call as part of his administrative duties, was acting in the course of his employment with the respondent.

3.3	The tribunal, having heard the recording of the telephone call, could fully understand the claimant’s upset and distress following the call, as set out in the claim form.  

4.1	For the claimant to establish a claim of unlawful discrimination and/or harassment, pursuant to the 1997 Order, it was necessary for the claimant, in accordance with the two-stage test and guidance set out in the case of Igen  v  Wong [2005] IRLR 258, to prove facts from which the tribunal could conclude, in the absence of an adequate explanation, that the respondent had committed the unlawful act of discrimination/harassment against the claimant (see Article 52A of the 1997 Order).

	However, as Mummery LJ in the case of Madarassy  v  Nomura International PLC [2007] IRLR 246 made clear:-

“The burden of proof does not shift to the employer simply on the claimant establishing a difference in status (eg race), a difference in treatment.  Those bare facts only indicate a possibility of discrimination.  They are not, without more, sufficient material from which a tribunal ‘could conclude’ that, on the balance of probabilities, the respondent had committed an unlawful act of discrimination.”

4.2	The claimant’s claim, pursuant to the 1997 Order, was primarily brought under Article 4A of the 1997 Order, which provides:-

(1)	A person (‘A’) subjects another person (‘B’) to harassment in any circumstances relevant for the purposes of any provision referred to in Article 3(1B) where, on the grounds of race or ethnic or national origins, (‘A’) engages in unwanted conduct which has the purport or effect of –

(a)	violating (‘B’s’) dignity, or

(b)	creating an intimidating, hostile, degrading, humiliating or offensive environment for (‘B’).

(2)	Conduct shall be regarded as having the effect specified in                 sub-paragraphs (a) and (b) of Paragraph (1) only if, having regard to all the circumstances, including, in particular, the perception of (‘B’), it should reasonably be considered as having that effect.

Under the provisions of Article 3 of the 1997 Order, it is provided:-

(1)	A person discriminates against another in any circumstances relevant for the purposes of any provision of this Order if –

(a)	on racial grounds he treats that other less favourably than he treats or would treat other persons.

…

Article 3 of the 1997 Order requires the claimant to prove less favourable treatment by an actual or hypothetical comparator on grounds of race, which amounts to a detriment within the meaning of the 1997 Order (claim of direct discrimination); whereas Article 4A of the 1997 Order does not require such a comparison to be made.  Thus, a claim of harassment may be actionable by itself under Article 4A of the 1997 Order, whether or not it would amount to a detriment.  If it would amount to a detriment, the claimant could have an alternative claim under Article 3 of the 1997 Order.

4.3	The elements of the claim, pursuant to Article 4A of the 1997 Order are threefold, subject to the burden of proof provisions referred to previously, as set out in the decision of the Employment Appeal Tribunal in the case of Richmond Pharmacology Ltd  v  Dhaliwal [2009] ICR 724 – namely:-

“(1)	Unwanted conduct.  Did the respondent engaged in unwanted conduct?

(2)	The purpose or effect of that conduct.  Did the conduct in question either –

				(a)	have the purpose; or

				(b)	have the effect of either – 

					(i)	violating the claimant’s dignity; or

					(ii)	creating an adverse environment for her?

		(3)	The grounds for the conduct.”

4.4	The tribunal, on the facts as found by it, and, in particular, having heard the recording of the telephone call, had no hesitation in concluding that the claimant had established the first two elements of the claim, as set out in the Richmond Pharmacology Ltd case referred to above.  However, although the tribunal was therefore satisfied that the claimant had been harassed, it was not satisfied that the claimant had been harassed on the grounds of race or ethnic or national origin; but rather it was satisfied the reason for the harassment was because of the annoyance of Dan, the respondent’s employee, for whose actions in the course of his employment it was responsible, because the claimant had failed to give sufficient notice to enable the respondent to obtain another employee to work for it on the Bowen Construction site on 3 October 2010.  

	In the circumstances, the claimant had not established a claim of harassment, pursuant to Article 4A of the 1997 Order.

	Even if the tribunal was wrong and the claimant sought to bring his claim, in the alternative, as a claim of direct discrimination, pursuant to Article 3 of the 1997 Order, the claimant’s claim would still have failed, because he was unable to show the reason why (see further Shamoon  v  Chief Constable of the Royal Ulster Constabulary [2003] UKHL 11) any less favourable treatment alleged was on racial grounds.  In addition, there was also no evidence to show that either an actual and/or a hypothetical comparator would have been treated any differently in the same circumstances by an employee of the respondent.  The tribunal would have accepted, if it had been necessary to do so, that the claimant had suffered a detriment upon receiving such a telephone call, not least with its reference to refusing to pay sums earned by the claimant in the course of his employment but also by reason of the language used by the respondent’s employee during the course of the telephone call.  

5.1	In the circumstances, the tribunal concluded that the claimant had not established a claim of discrimination and/or harassment, pursuant to the 1997 Order and the said claim must be dismissed.

5.2	Although the tribunal has dismissed the claimant’s claim of discrimination and/or harassment pursuant to the 1997 Order, the tribunal considered it was necessary to express its concern about the contents of the telephone call made by an employee of the respondent to the claimant in the circumstances set out above.  What was said by the respondent’s employee in the telephone call was totally unacceptable and unjustified and contrary to the principles of good employment practice, which the tribunal would have expected would have been followed by a major company such as the respondent and its employees.  

	In this context, the tribunal noted, with some regret, that, although the claimant sought an apology for what was said in the telephone call, the respondent was not prepared to provide any such apology, regardless of any defence it may have wished to rely upon in respect of the claimant’s claim to the tribunal.

Chairman:

Date and place of hearing:	23 August 2011, Belfast

Date decision recorded in register and issued to parties: