IN THE EMPLOYMENT AND DISCRIMINATION TRIBUNAL

 

 

IN THE MATTER:

 

 

BETWEEN

TEODOR DYULGEROV

CLAIMANT

 

AND

 

 

YOUR STORE LIMITED

 

DAN PULLINGER

 

TRACEY GOODWIN

FIRST RESPONDENT

 

SECOND RESPONDENT

 

THIRD RESPONDENT

 

 

 

 

 


ARTICLE 12 TRIBUNAL JUDGMENT


 

Reference:        [2018]TRE30

 

Date:                29 June 2018

 

Before:                         Mrs H G Griffin, Chairman

 

 

THE DECISION

 

The Tribunal finds that:

 

1.       The First and Second Respondents directly discriminated against the Claimant because of the protected characteristic of race (which includes nationality); and

2.       the First Respondent unfairly dismissed the Claimant. 

 

The First Respondent shall pay to the Claimant compensation for direct discrimination and for automatic unfair dismissal.

 

The claim of discrimination against the Third Respondent is rejected.

 

 

 

 

THE REASONS

 

Background

 

1.       By a Claim Form admitted by the Tribunal on 7 March 2018, the Claimant issued the following claims:

a)       automatic unfair dismissal (against the First Respondent); and

b)      direct discrimination because of the protected characteristic of race (against the First, Second and Third Respondent (together “Respondents”),

(“Claims”).

 

2.       On 8 March 2018, the Tribunal sent a copy of the Claim Form to the Respondents.  The Tribunal’s letter complied with the provisions of Article 7 of the Employment and Discrimination Tribunal (Procedure) Order 2016 (“Procedure Order”) and notified the Respondents of:

 

a)       how to submit a response;

b)      the time limit for submitting a response (being 28 March 2018); and

c)       the consequences of failing to submit a response within the given time limit.

 

3.       The Respondents did not file a response to the Claims within the time-limit. 

 

4.       On 3 April 2018, the Respondents submitted their response form by post, thereby six days outside the prescribed time-limit.

 

5.       On 4 April 2018, the Tribunal wrote to the Respondents rejecting the Respondents’ responses under the provisions of Article 9(c) of the Procedure Order.  The Tribunal informed the Respondents that they may apply for a reconsideration of that decision under the provisions of Article 10(1) of the Procedure Order.

 

6.       On 17 April 2018, the Respondents applied for a reconsideration on the grounds that the Respondents posted the Response Forms to the Tribunal prior to the expiry of the limitation period and that the Response Forms must therefore have been delayed in the post over the Easter period.

 

7.       On 18 April 2018, the Tribunal rejected the Respondents' application on the grounds that the postmark on the envelope containing the Response Forms showed that the day on which the Response Forms were posted to the Tribunal was 29 March 2018, the day after the expiry of the prescribed time-limit.

 

8.       Consequently these proceedings became the subject of Article 12 of the Procedure Order which sets out the effect of the non-presentation or the late presentation of a response.  Article 12(b) of the Procedure Order provides that:

 

“The Chairman or a Deputy Chairman must decide whether on the available material (which may include further information which the parties are required to provide), a determination can properly be made of the claim, or part of it and if so the Chairman or Deputy Chairman must issue a judgment accordingly; otherwise, a hearing must be fixed before a single member tribunal.” [emphasis added].

 

9.       I take from Article 12(b) that if the Tribunal believes there to be sufficient material available to make a proper determination in the case, it must do so.   

 

10.   The Claim Form set out the Claims clearly and unambiguously and I was satisfied that there was sufficient material to enable me to make a proper determination in this case.  I was therefore obliged by Article 12(b),to make such determination without a hearing.

 

11.   However, I did not have sufficient material to enable me to calculate the level of compensation due to the Claimant. An Article 12 Hearing was therefore convened to enable me to hear submissions on compensation.  I heard no evidence relating to the Claims.

 

Conclusion

Direct Discrimination: Race

12.   The Second Respondent (on behalf of the First Respondent) dismissed the Claimant.  Although named in the Claim Form, the Third Respondent played no role in the Claimant’s dismissal.  Accordingly, I rejected the Claimant’s claim against the Third Respondent.

 

13.   The Claimant claimed that his dismissal amounted to less favourable treatment and that such less favourable treatment was because of his nationality (ie race).

 

14.   I find that the First and Second Respondents directly discriminated against the Claimant because of the protected characteristic of race (which includes nationality).

 

Automatic unfair dismissal

15.   According to the Claim Form, the First Respondent employed the Claimant for twelve weeks between 29 November 2018 and 24 February 2018.

 

16.   Article 73 of the Employment (Jersey) Law 2003  (“Employment Law”) (as amended by the Employment (Qualifying Period)(Jersey) Order 2014 (“Order”) prescribes that in order to qualify for protection from unfair dismissal an employee must be continuously employed for a minimum period of 52 weeks.  In most circumstances, this means that an employee with less than 52 weeks’ continuous employment is not protected from unfair dismissal under the provisions of the Employment Law.

 

17.   However, Article 70A of the Employment Law provides as follows:

 

70A           Dismissal by reason of discrimination

An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason or principal reason for the dismissal constitutes an act of discrimination against the employee prohibited by the Discrimination Law. [as defined below]"

 

18.   Thus, if the reason for an employee’s dismissal is found to be an act of discrimination, that employee’s dismissal will be automatically unfair; the employee is not required to have 52 weeks' continuous service in order to enjoy the protection of Article 70A of the Employment Law.   

 

19.   The above finding that the Claimant’s dismissal was an act of discrimination means that he falls within the provisions of Article 70A.

 

20.   I therefore find that the Claimant was unfairly dismissed by the First Respondent.

 

Compensation

21.   In relation to the race discrimination claim, the Claimant requested compensation for both financial loss and for hurt and distress.  In relation to the unfair dismissal claim, the Claimant requested four weeks compensation.

 

Vicarious liability

22.   Article 32 of the Discrimination (Jersey) Law 2013 ("Discrimination Law”) provides that employers are liable for acts of discrimination carried out by their employees during the course of their employment, whether or not such acts were carried out with the employer's knowledge or approval. However employers have a defence if they can show that they took "such steps as were reasonably practicable to prevent the employee from doing that act". 

 

Direct Discrimination: Financial losses

23.   The Claimant provided the following information regarding his financial losses:

a)       the Claimant’s effective date of termination of his employment (“EDT”) was 24 February 2018;

b)      during his employment with the Respondent, the Claimant’s normal weekly wage was £432 per week;

c)       the Claimant started new permanent employment on 16 April 2018;

d)      between the EDT and 16 April 2018, the Claimant worked as a roofer for one week. He received £8 per hour and worked a thirty-five hour week. The Claimant therefore received £280; and

e)      the Claimant also worked for one day road resurfacing, although he was unsure of his exact rate of pay for that day. 

 

24.   On behalf of the Respondents, Mr Sutcliffe provided the following information at the hearing:

a)       approximately one month after the Claimant’s dismissal, the First Respondent sold the shop where the Claimant had worked.  The Second Respondent is therefore no longer employed by the First Respondent, although the First Respondent still exists and is owned by the same people.

b)      at the time of the Claimant's employment, the First Respondent employed between 15 to 20 employees;

c)       Mr Sutcliffe was unsure of whether or not the First Respondent had a Discrimination Policy.  However, he stated that even if it did not have a discrimination policy, the First Respondent did not tolerate discrimination in any form;

d)      Mr Sutcliffe confirmed that the Respondent provided induction training to new employees but he did not know whether such induction training included discrimination training; and

e)      at the time of the Claimant’s dismissal, the Second Respondent had only been employed for approximately six weeks.

 

25.   On the basis of the figures provided to me by the Claimant, I make the following award for financial losses:

7 weeks x £432 = £3,024

less

(1 week @ £280 = £280)

less

(1 day @ £64 = £64) (calculated on the basis of £8 per hour for an 8 hour day)

Total = £2,680

 

26.   I therefore award the Claimant £2,680 by way of compensation for financial losses arising from direct discrimination.

 

Direct Discrimination: Hurt and Distress

27.   I considered the guidance set out in Flanagan v Island Greetings Ltd & Others (JET 147/15) regarding the level of compensation for hurt and distress and also considered the English Court of Appeal case of Vento v Chief Constable of West Yorkshire Police (No.2) 2003 ICR 318, CA.

 

28.   I accepted the Claimant’s evidence that his dismissal upset and angered him.  However, I also noted that the Claimant had only been working for the Respondent for a short period of time.  Whilst the loss of any job in these circumstances is distressing, I concluded that the loss of a short-lived job would not cause the same degree of hurt and distress as would the loss of a long-held job (see Kellie v Izmaylova Ltd ET Case No. 2200442/11). I therefore concluded that the one-off discriminatory act of dismissing the Claimant fell within the lower compensation band as set out in Flanagan.  However, whilst the one-off decision to dismiss did not amount to a prolonged campaign of discrimination, the act itself had a significant detrimental impact on the Claimant. 

 

29.   In view of the above, I award the Claimant the sum of £1,200 by way of compensation for hurt and distress.

 

Apportionment of payment of compensation for discrimination

30.   Article 42(2) of the Discrimination Law authorises the Tribunal to order that the payment of compensation be apportioned in such amounts as it considers just and equitable in the circumstances. 

 

 

31.   In this case, I noted that:

 

a)       it was First Respondent’s error in failing to submit the Response Forms in time which resulted in the Second Respondent being unable to participate in the proceedings;

b)      Mr Sutcliffe did not persuade me that the First Respondent provided any discrimination training to the Second Respondent, who had only been employed for approximately six weeks at the time of the Claimant’s dismissal; and

c)       only the First Respondent could actually dismiss the Claimant, albeit through the medium of the Second Respondent;

 

32.   I therefore conclude that, in the circumstances, it is just and equitable for the First Respondent to pay all of the compensation awarded for the act of discrimination against the Claimant.

 

33.   The First Respondent shall therefore pay the total sum of £3,880 to the Claimant by way of compensation for the act of discrimination.

 

Automatic unfair dismissal

34.   Under the provisions of the Employment (Awards) (Jersey) Order 2009 (“Awards Order”), where an employee has been employed for 26 weeks or less, the Tribunal has a discretion to award an amount not exceeding 4 weeks’ pay, having regard to the actual length of service.

 

35.   In exercising my discretion, I note that the Claimant worked for 12 weeks, which amounts to just under half of the 26 week period as prescribed under the Awards Order.  I therefore consider it to be appropriate to award an amount which is broadly reflective of that proportion of time. 

 

£432 x 2 = £864.00

 

36.   The First Respondent shall pay to the Claimant the sum of £864 by way of compensation for unfair dismissal.

 

Summary of Award to be paid by First Respondent

 

Compensation for discrimination

£3,880

Compensation for automatic unfair dismissal

£864.00

TOTAL AWARD

£4,744

 

Mrs H G Griffin, Chairman                                                                       9 July 2018

 

…………………………………………………         


Page Last Updated: 09 Jul 2018