THE INDUSTRIAL TRIBUNALS 

CASE REF:	1764/11

CLAIMANT:	Anoshi Chipawa			

RESPONDENT:	Armstrong Care Services Limited			

DECISION

The unanimous decision of the tribunal is that all the claimant’s claims to this tribunal are dismissed.  The claimant also named Blair Lodge Residential Home as a respondent, but the tribunal dismiss this respondent from the proceedings as it is merely the name of a Home owned by the respondent Armstrong Care Services Limited. 

Constitution of Tribunal:		

Chairman:			Mr S M P Cross	

Panel Members:		Mr J Welsh
				Prof D Boyd

Appearances:

The claimant appeared in person and was not represented.

The respondent was represented by Mr Sheridan of Peninsula Services Limited .

ISSUE

FINDINGS OF FACT
1.	The claimant commenced employment with the respondent on 27 April 2009.  At the time that he commenced his employment the claimant gave to the respondent a letter from his general practitioner, stating that he had a problem with diabetes.  The claimant had no problem with regard to his employment until January 2011, when he wrote to the respondent, complaining that he was being underpaid.  In that letter, the claimant stated that he was being paid £6.00 per hour, whilst his colleagues were being paid £6.50 per hour.
2.	The respondents checked the sums paid to the claimant, and agreed that the claimant should have been paid at the rate of £6.50 per hour.  The respondent admitted that the claimant’s pay had been wrongly assessed.  A repayment occurred after the claimant had made a further complaint which was dealt with under the grievance procedure.
3.	By letter dated 30 July 2010, the claimant asked for a change of employment status.  He had come to realise that his health was limiting his work capability. The respondent therefore sought to reduce his full-time employment, being fixed shifts of 37 hours, to reduced shifts of 21 hours. The only way that the respondent could facilitate the claimant in this respect, was by transferring his work from the care home known as “212”, to the other care home in Bangor known as Blair Lodge.  Because improvement work had been carried out at Blair Lodge, client numbers were at that time reduced and at first the claimant could only work limited hours, which ultimately were built up, as Blair Lodge was filled again.  The claimant appeared to accept this situation and continued to work under these arrangements.  The claimant launched a grievance on 25 February 2011 in which he referred to the fact that his pay was not the same as other female comparators.  He also referred to the fact, that as a black African, he was being paid less than white comparators and he alleged race as well sex discrimination.  There was also a problem with the number of weekends that the claimant was expected to work.  The tribunal heard of the complications in preparing the rotas.  This was a particular problem at Blair Lodge, where certain female clients could behave in an inappropriate manner and for the male members of staff, certain duties had to be carried out with female staff present, for the protection of the male staff.  This had repercussions to the week end rotas.
4.	The claimant also alleged that his employer was failing to make proper adjustments to take account of his diabetes and high blood pressure.
5.	The lengthy shifts and excessive hours, which the claimant alleged were being asked of him, were, he claimed, in breach of the working time regulations (referred to later).  On 8 March, the claimant received a response from the respondent stating that a hearing would be arranged to deal with these matters.
6.	On 4 April the claimant's grievance was heard by Helen Armstrong, a director of the respondent.  This hearing dealt with the grievances above referred to and an additional grievance which the claimant had lodged on 30 March.  This concerned his allegation that the respondent failed to make arrangements for him to have time off in connection with his sitting the UK citizenship exam, which not only required time for him to sit the exam but time for preparation and tuition.  The claimant stated that because of the failure of the respondent to give him this time off, he had had to take it without permission, thus invoking a disciplinary hearing on the part of the respondent, who claimed that he had failed to attend work on certain days.
7.	Both these grievances were discussed at a meeting held on 4 April, at which the claimant participated fully.  So far as the diabetes was concerned the respondent stated that it did know that the claimant had diabetes and had sought advice from the claimant's GP, who confirmed that he was fit and that there was no need to make any adjustments in view of the medical condition.
8.	The respondent then looked at the payment of hourly rate and it wasn’t at this meeting that the repayment was arranged.  The respondent admitting that a mistake had been made in the administration.
9.	The respondent then considered a complaint of racial discrimination and reported that it saw no evidence whatsoever of such discrimination.  Indeed, the respondent was surprised that this matter had been raised, as the claimant had received a number of loans from the respondent in connection with the purchase of a car and a trip to Zambia to attend a funeral.  The managing director of the company had also assisted the claimant in cancelling a potentially expensive contract to rent a flat which he no longer required and Mrs Armstrong had attended a meeting with the agent and the claimant for this purpose.  These are not, in the view of the tribunal, actions to be taken by a company that was intent on discriminating against its employee.
10.	Before the grievance meeting, a disciplinary hearing was held on 25 March, to deal with the absence of the claimant without permission.  This resulted in the claimant being given a written warning as to his future conduct.  The claimant appealed this decision and the appeal was heard on 6 April by Mrs Helen Armstrong.  The claimant at the initial hearing concerning the disciplinary matter and at the appeal admitted that he had to request the leave in line with company policy and it was wrong of him to have absented himself from work.  Because of this short notice and his absence, other staff had to work additional hours and this put pressure on the remaining staff and a risk to safety of the residents.  The problem appears to have been, not with the exam itself, but with the training for the exam, which had been arranged by the claimant and it did not appear to the respondent that the claimant had taken sufficient care to ensure that the training did not conflict with his duty at the care home.
11.	Subsequently, the claimant was suspended and notified of further disciplinary proceedings, as a result of a further failure to attend work, at properly agreed shifts on the 1, 3, 9, 10 and 13 of April.  The refusal to attend on the 1, and 3 of April was apparently as a protest, by the claimant, who stated that the respondent had breached confidentiality with the manager of another care home, at which he was also working from time to time.  Because the claimant had failed to attend his duty on the 19 and 27 March, because of sickness, the claimant argued, the respondent had checked with the manager of the other care home owned by Cedar Foundation, who informed the respondent that the claimant had been working on those days at Cedar’s home.  Similar information was given concerning the claimant’s absence on 10 April.
12.	This further disciplinary matter was dealt with by the respondent at a hearing on 7 May 2011.  At that meeting, Mrs Helen Armstrong, who again heard the disciplinary, referred to the meeting earlier in April at which the claimant had assured her that he would not be missing further duties.  At this meeting the claimant admitted that he had told untruths, concerning his failure to attend certain days because of illness, when indeed he was working elsewhere.  As a result of this and as a result of the grievance proceedings, Mrs Armstrong stated in her letter to the claimant of 10 May that having given the matter consideration, she was going to be lenient with the claimant and would not be placing a sanction on him for these offences and she expected that from then on, he would provide reliable and regular attendance at work.
13.	Shortly after this, on 2 June 2011, the claimant resigned from his employment with the respondent stating that he had no alternative but to do this, as he felt that he was being racially discriminated against and that he was not prepared to tolerate the conduct of his manager, who he identified as racist.  The claimant subsequently made his application to this tribunal. 
The Law

Racial Discrimination

14.	Article 3(1) (a) of The Race Relations (Northern Ireland) Order 1997 (“the 1997 Order”) defines racial discrimination as the treatment of a person, of a different race, in a less favourable way, than the treatment of other people.

Article 6(2) governs race discrimination in the work places and states:-

“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-

(a)	In the terms of employment which he affords him; or
(b)	In the way he affords him access to opportunities for promotion, transfer or training, or to any other benefits, facilities or services or by refusing or deliberately omitting to afford him access to them; or,
(c)	Dismissing him or subjecting him to any other detriment.” 

Article 52 then provides that a complaint of discrimination shall be presented to an Industrial Tribunal.

15.	Article 52A provides for the burden of proof to be transferred to the respondent in certain circumstances set out in Article 52A (2) as follows;

	“(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.”

16.	Article 32 makes the employer responsible for the conduct of his other employees who discriminate in the work place, and Article 33 places a similar charge of discrimination on a person who assists another in a discriminatory action.

Sex Discrimination 

17.	Under Article 3(1) (a) of the Sex Discrimination (Northern Ireland) Order 1976, (“the 1976 Order”) a person discriminates against a woman if, on the ground of her sex, he treats her less favourably than he treats or would treat a man.  Article 3 applies this requirement in the same way to a man who is treated less favourably to a woman.

18.	Under the provisions of Article 63A of the 1976 Order, a similar provision applies to the shifting of the burden of proof as that in Article 52(A) of the 1997 Order.

Disability Discrimination 

19.	The meaning of disability discrimination is set out in Section 3A of the Disability Discrimination Act 1995 as amended (hereinafter called “the 1995 Act”). 

“(1) 	for the purposes of this Part, a person discriminates against a disabled person if-

(a)	for a reason which relates to the disabled person’s disability, he treats him less favourably than he treats or would treat others to whom that reason does not or would not apply, and 
(b)	he cannot show that the treatment in question is justified. 

(2)	for the purposes of this Part, a person also discriminates against a disabled person if he fails to comply with a duty to make reasonable adjustments imposed on him in relation to the disabled person.”

Section 4(2) of the 1995 Act states that it is “unlawful for an employer to discriminate against a disabled person whom he employs”, inter alia, “(d) by dismissing him, or subjecting him to any other detriment”.

Section 4A of the 1995 Act states “(1) Where (a) a provision, criterion or practice applied by or on behalf of an employer places the disabled person concerned at a substantial disadvantage in comparison with persons who are not disabled, it is the duty of the employer to take such steps as are reasonable, in all the circumstances of the case, for him to have to take in order to prevent the provision, criterion or practice, having that effect.”

20.	Once again there is provision for the shifting of the burden of proof as in the other Discrimination Orders referred to above (see Section 17A (1c) of the 1995 Act. Thus, as in those Discrimination Orders, the tribunal, in deciding whether there has been an act of discrimination on the part of a respondent, must first decide whether the claimant has proved a prima facia factual situation which could suggest discrimination.  Only if the claimant does so prove, does the burden of proof then move to the respondent to show to the tribunal that he did not so discriminate against the claimant.

Constructive Dismissal

21.	The claimant also claims that the respondent unfairly constructively dismissed him from his employment, in contravention of Article 127 of The Employment Rights (Northern Ireland) Order 1996, (hereinafter the 1996 Order),

“127 (1) For the purposes of this part [of the Order]) an employee is dismissed by his employer [if]……..

(a)……………………………..
(b)…………………………………….

(c) 	the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer’s conduct.”

Working Time Regulations

22.	Finally, the claimant claimed that the respondent had been in breach of the Working Time Regulations (Northern Ireland) 1998, as amended.  Under the terms of these regulations a worker is not to work over a certain number of hours in any week.  It is however permissible for the employee to opt out of the regulations.

DECISION

23.	The tribunal dealt first with the various discrimination claims.  Under the rules for the shifting of the burden of proof, the tribunal have to find some conduct of the respondent that would justify the claimant in walking away from his job, in the light of a breach by the respondent of its duty as an employer. The tribunal could find no such conduct that would allow the claimant to make such an assertion.  Indeed the tribunal found quite the reverse, in that it found that the respondent had done much more for the claimant than many other employers would have done.  The Managing Director lent him substantial sums of money on a number of occasions when he was in difficulties and went with him to a meeting with his landlord’s agent, to assist in getting a lease cancelled, when the claimant had got himself into difficulties.

24.	Although the claimant named some female colleagues and some non- disabled colleagues and some colleagues of different race to him, he was unable to show any conduct on the part of the respondent, or her staff, that would have suggested discrimination.  One of the claimant’s main points of grievance was the fact that for some time he was being paid the wrong wage.  The tribunal however holds, that it accepts that this was a genuine mistake in the pay office, which might have occurred to the detriment of any member of staff and that it was corrected as soon as it was checked out and the claimant’s calculation had been shown to be correct.

25.	With regard to the allegation of Disability Discrimination, the claimant stated that the respondent had not dealt properly with his requirement for changed hours.  The tribunal holds that this is not correct and that as soon as the respondent became aware of the claimant’s medical state, arrangements were put in place to facilitate him.  As an example of this when in August 2010 the claimant asked for a reduction of his hours at 37 fixed, to a relief position, the respondent was unable to accommodate that at the home known as “212”, but was able to do it at the other home at Blair Lodge.  Blair Lodge had been closed for refurbishment and the claimant was moved there for lesser hours on a temporary arrangement until his hours would build up. The tribunal find no evidence that the claimant was treated in any but a sympathetic manner in regard to his disability.  On some occasions this was not made easy for the respondent, as the claimant was working a considerable number of hours at another business, which sometimes caused conflict with his work for the respondent.

26.	The tribunal dismisses the claimant’s claim that he was constructively dismissed by the respondent.  There is simply no evidence of any breach of contract on the part of the respondent prior to the letter of resignation.  At that time the claimant was embroiled in his grievance complaints and the disciplinary matters which had been notified to him.  At the end of this disciplinary process the respondent took a very lenient approach to the charges put to the claimant and proved against him.  Indeed the respondent tried to draw a line under the disciplinary matters and tried to get the claimant to start on a new footing in his employment.  The claimant despite this, in the view of the tribunal, manufactured a number of further incidents, which he must have known would lead to further disciplinary action on the part of the respondent.  He then resigned with the intention of bringing this spurious charge of constructive dismissal against the respondent. 

27.	The tribunal also dismisses the claimant’s claim for compensation for a breach of the working time regulations as the claimant had signed a clause in his two contracts of employment contracting out of these regulations. 

28.	The tribunal considered the possible breach of the contract of employment by the respondent.  There was no evidence of any such breach.  The tribunal holds that the claimant’s hours were adjusted at his request as described above and later he was often anxious to be given more hours in certain weeks, which were often afforded to him.  He did also seek changes to his work pattern to allow him more free weekends.  This was addressed at the grievance meeting, when reference was made to the possible problem of his being alone with women clients.  The respondent had hoped to resolve this matter but the claimant resigned before that could be arranged.

29.	The tribunal considered the grievance procedure adopted by the respondent and holds that the requirements of the legislation set out in The Employment (Northern Ireland) Order 2003 and the Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations 2004, were complied with in a proper and timely manner, with the claimant having a full engagement with the process.

30.	For the above reasons all the claimant’s claims to this tribunal are dismissed.

Chairman:

Date and place of hearing: 	26 and 27 March 2012, Belfast

Date decision recorded in register and issued to parties: