THE INDUSTRIAL TRIBUNALS

CASE REF:	2722/15

CLAIMANT:			Anton Venelinov Dinkov

RESPONDENT:		Tommy McKeating

WRITTEN REASONS FOR DECISION 
The tribunal gave an oral decision in this case on 24th June 2016. The claimant was not present and was not represented.  He did furnish written representations in the form of a witness statement with 19 appendices attached. The claimant requested written reasons for the decision within the relevant period.
A copy of the decision issued on 24 June 2016, is attached.  The appearances are contained therein.

THE CLAIM

1.	The claimant alleged unfair dismissal and unlawful discrimination on racial grounds.  He also claimed amounts for unlawful deduction from wages and for breach of contract.  The respondent denied the claimant’s claims in their entirety, save for the amount of £54.60 owed to him in respect of wages.

THE ISSUES

2.	(1)	Was the claimant unlawfully discriminated against on racial grounds?

	(2)	Was the claimant dismissed, and if so, was he unfairly dismissed?

	(3)	Is the claimant due amounts in respect of a breach of contract and an unlawful deduction from wages?

SOURCES OF EVIDENCE

3.	The tribunal considered information under Rule 27 of the Industrial Tribunals Rules of Procedure 2005, together with the claimant’s written representations and the evidence provided by the respondent, including documentary evidence.  The respondent gave oral evidence.

FINDINGS OF FACT

4.	Having considered the information and written representations before it, and the evidence (both oral and documentary) the tribunal made the following findings of fact, on the balance of probabilities:-

(i)	The claimant responded to a website advertisement placed by 4 XtraHands Ltd for a job on the respondent’s farm.  The tribunal is satisfied that this advertisement did not specifically target foreign workers.

	(ii)	The claimant accepted an offer of employment on the respondent’s farm and began employment on Monday 19 October 2015.  The respondent advanced him the sum of £50.00 in cash on the previous day and paid him an extra amount of £150.00 for his work during the following week.  He was paid at the rate of £6.70 per hour.  The tribunal is satisfied that he is owed an extra amount of £54.60, being the difference between £6.70 x 38 hours = £254.60, and the amount of £200.00 actually paid.

	(iii)	The tribunal found the respondent to be a credible witness, and where conflicts arose with the claimant’s allegations preferred the respondent’s evidence.  It is satisfied that the claimant worked for a total of 38 hours up to Monday morning 26/10/15.  At around 4.00-4.10 am on that date he rapped the respondent’s window.  Having initially spoken to the respondent’s mother about business he had to discuss with the respondent, the respondent himself subsequently spoke to him.  He advised the claimant to go back to the mobile home provided for him and to wait until 9.00 am when the respondent intended to discuss the claimant’s claim for outstanding monies and intended also to dismiss him as he had shown during the previous week that he was totally inexperienced in farm work.  However the claimant disappeared before the respondent could speak to him.  There was no subsequent contact between the respondent and the claimant.  

	(iv)	The respondent had previously employed a Bulgarian worker by the name of George, who left in or about October/November 2014.

	(v)	The wholly unsatisfactory performance by the claimant and his unsuitability for farm work, is exemplified by the fact that he was unaware what Wellington boots were for, he had to be constantly supervised, and did not know how to create a sawdust bed for cows, which the respondent’s daughter and a 14 year old boy were able to do.  Generally, the respondent assessed the claimant as having no experience in farm work.  The tribunal does not accept the claimant’s miscellaneous complaints relating mainly to the respondent treating him as a slave, having to work in cages and among dead calves, that the mobile home was, in terms, in an appalling state, that he was prohibited from talking with a fellow employee named Christopher, or that Christopher had been sacked, that he babysat the respondent’s daughter, that he was threatened by the respondent, that he worked some 69 hours for 8 working days, and was owed £8,116.00 for the balance of a period of three months, or any complaint regarding Wifi access.

	(vi)	The tribunal was shown a number of certificates and documentation relating to the respondent’s farm from various sources, together with extremely positive correspondence from his Veterinary Surgeon, and a statement from Christopher Coffey, correspondence from the National Falling Stock Scheme (which referred to the collection of two dead animals on 27 October 2015) and a Caravan Gas Safety Test Certificate, all of which fortify the tribunal’s findings and the credibility of the respondent’s case.

	(vii)	The tribunal is further satisfied that the claimant was in no way treated differently because he was a Bulgarian.  He left the respondent’s employment, having sensed through conversations with the respondent that he did not know the first thing about farming and may be dismissed.  He wanted to secure as much money as possible from the respondent before he left, hence his request to discuss outstanding monies.  On the morning of 26 October 2015 the claimant performed no work on the farm.  It follows that the claimant was not dismissed by the respondent.

THE LAW

5.	The tribunal considered, insofar as relevant, the law in relation to dismissal and unfair dismissal, and in relation to unlawful discrimination on racial grounds and the necessary burden of proof.

	(1)	Article 127 of the Employment Rights (Northern Ireland) Order 1996 (“the 1996 Order”) provides as follows:-

	“127. – (1)  for the purposes of this part an employee is dismissed by the employer if ... – (a)  the contract under which he is employed as terminated by the employer (whether with or without notice) .....

130.― (1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show— 

(a)	the reason (or, if more than one, the principal reason) for the dismissal, and

(b)	that it is either a reason falling within paragraph (2) 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)	Where the employer has fulfilled the requirements of paragraph (1), the determination of the question 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

(b)	shall be determined in accordance with equity and the substantial merits of the case."

	(2)(i)	In relation to the claim of direct discrimination on racial grounds, 
Article 3(1) of the Race Relations (Northern Ireland) Order 1997 (“the Order”), provides as follows:-

		“(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; …

		(3)	a comparison of the case of a person of a particular racial group with that of a person not of that group under Paragraph (1) … must be such that the relevant circumstances in the one case are the same, or not materially different, in the other”.

	 (ii)	“Racial Grounds” is defined in Article 5(1) of the Order as meaning “any of the following grounds, namely colour, race, nationality or ethnic or national origins;”

	(iii)	Article 6(2) of the Order states that it is unlawful for a person, in the case of a person employed by him at an establishment in Northern Ireland, to discriminate against that employee “by dismissing him, or subjecting him to any other detriment.”

BURDEN OF PROOF REGULATIONS

6.	(i)	Article 52A of the Order provides as follows:-

		“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.”

	(ii)	In Igen Ltd (formerly Leeds Carers Guidance) and Others  v  Wong, Chamberlains Solicitors and Another  v  Emokpae; and Brunel University  v  Webster [2006] IRLR 258, the Court of Appeal in England and Wales set out guidance on the interpretation of the statutory provisions shifting the burden of proof in cases of sex, race and disability discrimination.  This guidance is now set out in the Annex to the judgment in the Igen case.  The guidance is not reproduced but has been taken fully into account.   

	(iii)	The tribunal also considered the following authorities, McDonagh and Others  v  Hamilton Thom Trading As The Royal Hotel, Dungannon [2007] NICA, Madarassy  v  Nomura International Plc [2007] IRLR 246 (“Madarassy”), Laing  v  Manchester City Council [2006] IRLR 748 and Mohmed  v  West Coast Trains Ltd [2006] UK EAT 0682053008.  It is clear from these authorities that in deciding whether a claimant has proved facts from which the tribunal could conclude in the absence of an adequate explanation that discrimination had occurred, the tribunal must consider evidence adduced by both the claimant and the respondent, putting to the one side the employer’s explanation for the treatment.  As Lord Justice Mummery stated in Madarassy at paragraphs 56 and 57:-

“The Court in Igen  v  Wong expressly rejected the argument that it was sufficient for the complainant simply to prove facts from which the Tribunal could conclude that the respondent “could have” committed an unlawful act of discrimination.  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 probabilities, the respondent had committed an unlawful act of discrimination.

		“Could conclude” in s.63A(2) must mean that “a reasonable Tribunal could properly conclude” from all the evidence before it.  This would include evidence adduced by the complainant in support of the allegations of sex discrimination, such as evidence of a difference in status, a difference in treatment and the reason for the differential treatment. It would also include evidence adduced by the respondent contesting the complaint.  Subject only to the statutory “absence of an adequate explanation” at this stage…, the Tribunal would need to consider all the evidence relevant to the discrimination complaint; for example, evidence as to whether the act complained of occurred at all; evidence as to the actual comparators relied on by the complainant to prove less favourable treatment; evidence as to whether the comparisons being made by the complainant were of like with like as required by s.5(3) of the 1975 Act; and available evidence of the reasons for the differential treatment.”

	(iv)	The tribunal received valuable assistance from Mr Justice Elias’ judgement in the case of London Borough of Islington  v  Ladele and Liberty (EAT) [2009] IRLR 154, at paragraphs 40 and 41.  These paragraphs are set out in full to give the full context of this part of his judgement.  

	“Whilst the basic principles are not difficult to state, there has been extensive case law seeking to assist Tribunals in determining whether direct discrimination has occurred.  The following propositions with respect to the concept of direct discrimination, potentially relevant to this case, seem to us to be justified by the authorities:

(1)	In every case the Tribunal has to determine the reason why the claimant was treated as he was.  As Lord Nicholls put it in Nagarajan  v  London Regional Transport [1999] IRLR 572, 575 – ‘this is the crucial question’.  He also observed that in most cases this will call for some consideration of the mental processes (conscious or sub-conscious) of the alleged discriminator.

	(2)	If the Tribunal is satisfied that the prohibited ground is one of the reasons for the treatment, that is sufficient to establish discrimination.  It need not be the only or even the main reason.  It is sufficient that it is significant in the sense of being more than trivial: see the observations of Lord Nicholls in Nagarajan (p.576) as explained by Peter Gibson LJ in Igen  v  Wong [2005] IRLR 258, paragraph 37.

	(3)	As the courts have regularly recognised, direct evidence of discrimination is rare and Tribunals frequently have to infer discrimination from all the material facts.  The courts have adopted the two-stage test which reflects the requirements of the Burden of Proof Directive (97/80/EEC).  These are set out in Igen  v  Wong.  That case sets out guidelines in considerable detail, touching on numerous peripheral issues.  Whilst accurate, the formulation there adopted perhaps suggests that the exercise is more complex than it really is.  The essential guidelines can be simply stated and in truth do no more than reflect the common sense way in which courts would naturally approach an issue of proof of this nature.  The first stage places a burden on the claimant to establish a prima facie case of discrimination:-

	‘Where the applicant has proved facts from which inferences could be drawn that the employer has treated the applicant less favourably [on the prohibited ground], then the burden of proof moves to the employer.’

	If the claimant proves such facts then the second stage is engaged.  At that stage the burden shifts to the employer who can only discharge the burden by proving on the balance of probabilities that the treatment was not on the prohibited ground.  If he fails to establish that, the Tribunal must find that there is discrimination.  (The English law in existence prior to the Burden of Proof Directive reflected these principles save that it laid down that where the prima facie case of discrimination was established it was open to a Tribunal to infer that there was discrimination if the employer did not provide a satisfactory non-discriminatory explanation, whereas the Directive requires that such an inference must be made in those circumstances: see the judgment of Neill LJ in the Court of Appeal in King  v  The Great Britain-China Centre [1991] IRLR 513.)

	(4)	The explanation for the less favourable treatment does not have to be a reasonable one; it may be that the employer has treated the claimant unreasonably.  That is a frequent occurrence quite irrespective of the race, sex, religion or sexual orientation of the employee.  So the mere fact that the claimant is treated unreasonably does not suffice to justify an inference of unlawful discrimination to satisfy stage one.  As Lord Browne-Wilkinson pointed out in Zafar  v  Glasgow City Council [1997] IRLR 229:-
	
	‘it cannot be inferred, let alone presumed, only from the fact that an employer has acted unreasonably towards one employee that he would have acted reasonably if he had been dealing with another in the same circumstances.’

	Of course, in the circumstances of a particular case unreasonable treatment may be evidence of discrimination such as to engage stage two and call for an explanation: see the judgment of Peter Gibson LJ in Bahl  v  Law Society [2004] IRLR 799, paragraphs 100, 101 and if the employer fails to provide a non-discriminatory explanation for the unreasonable treatment, then the inference of discrimination must be drawn.  As Peter Gibson LJ pointed out, the inference is then drawn not from the unreasonable treatment itself – or at least not simply from that fact – but from the failure to provide a non-discriminatory explanation for it.  But if the employer shows that the reason for the less favourable treatment has nothing to do with the prohibited ground, that discharges the burden at the second stage, however unreasonable the treatment.

	(5)	It is not necessary in every case for a Tribunal to go through the two-stage procedure.  In some cases it may be appropriate for the Tribunal simply to focus on the reason given by the employer and if it is satisfied that this discloses no discrimination, then it need not go through the exercise of considering whether the other evidence, absent the explanation, would have been capable of amounting to a prima facie case under stage one of the Igen test:  see the decision of the Court of Appeal in Brown  v  Croydon LBC [2007] IRLR 259 paragraphs 28-39.  The employee is not prejudiced by that approach because in effect the Tribunal is acting on the assumption that even if the first hurdle has been crossed by the employee, the case fails because the employer has provided a convincing non-discriminatory explanation for the less favourable treatment.

	(6)	It is incumbent on a Tribunal which seeks to infer (or indeed to decline to infer) discrimination from the surrounding facts to set out in some detail what these relevant factors are: see the observations of Sedley LJ in Anya  v  University of Oxford [2001] IRLR 377 esp paragraph 10.”

	(v)	The tribunal also received considerable assistance from the judgment of Lord Justice Girvan in the Northern Ireland Court of Appeal decision in Stephen William Nelson  v  Newry and Mourne District Council [2009] NICA 24.  Referring to the Madarassy decision (supra) he states at paragraph 24 of his judgment:-

		“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 Coghlin 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”.

SUBMISSIONS

7.	No submissions were made.

CONCLUSIONS

8.	The tribunal, having considered the evidence and having applied the relevant principles of law to the findings of fact concludes as follows:-

	(1)	The tribunal is satisfied that the claimant has not proved facts from which the tribunal could conclude in the absence of an adequate explanation that unlawful discrimination on racial grounds has occurred.  It is satisfied that the reason for the claimant’s resignation was due to the fact that he had no experience in farm work.  He was made aware of this in conversations with the respondent and sensed that the respondent may dismiss him as being of no use on the farm.  He therefore chose to leave before any such action could be taken.  The claimant was therefore not dismissed by the respondent.  Alternatively, in light of its finding in relation to discrimination on racial grounds, the tribunal finds that the claimant has not been employed for a period of not less than one year, and the tribunal has no jurisdiction to hear his complaint of unfair dismissal.

	(2)	The tribunal is however satisfied that the claimant is entitled to the sum of £54.60 as set out in its factual findings.  He is not entitled to any further sums either due to an alleged breach of contract or in respect of an unlawful deduction from wages.

Employment Judge:

Date and place of hearing:  23 June 2016, Belfast.

Date decision recorded in register and issued to parties:

THE INDUSTRIAL TRIBUNALS

CASE REF:	2722/15

CLAIMANT:			Anton Venelinov Dinkov

RESPONDENT:		Tommy McKeating

Certificate of Correction
1.	In the decision issued on 24th June 2016, the Appearance for the respondent was      incorrect and should have read as follows:
2.	The respondent was represented by Mr S Doherty, Barrister-at-Law, instructed by King and Boyd Solicitors.

______________________________________

Date:_________________________________

THE INDUSTRIAL TRIBUNALS

CASE REF:	2722/15

CLAIMANT:			Anton Venelinov Dinkov

RESPONDENT:		Tommy McKeating

DECISION 
The unanimous decision of the tribunal is that the claimant’s claims of unfair dismissal and unlawful discrimination on racial grounds are dismissed, and that the respondent is ordered to pay the amount of £54.60 in respect of wages owed to the claimant.

Constitution of Tribunal:
Employment Judge:	Employment Judge Crothers
Members:			Mr C McIlwaine
				Mr I Foster
Appearances:
The claimant did not appear and was not represented.  He submitted written representations in the form of a witness statement with 19 appendices.  
The respondent was represented by Mr G Doherty, Barrister-at-Law, instructed by Donard King & Company, Solicitors.

1.	Reasons for the decision were given at the hearing.

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

Employment Judge

Date and place of hearing:	23 – 24 June 2016,  Belfast

Date decision recorded in register and issued to parties: