IN THE EMPLOYMENT AND DISCRIMINATION TRIBUNAL
IN THE MATTER:
YOUR STORE LIMITED
12 TRIBUNAL JUDGMENT
H G Griffin, Chairman
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.
a Claim Form admitted by the Tribunal on 7 March 2018, the Claimant issued the
unfair dismissal (against the First Respondent); and
discrimination because of the protected characteristic of race (against the
First, Second and Third Respondent (together “Respondents”),
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
to submit a response;
time limit for submitting a response (being 28 March 2018); and
consequences of failing to submit a response within the given time limit.
Respondents did not file a response to the Claims within the time-limit.
3 April 2018, the Respondents submitted their response form by post, thereby
six days outside the prescribed time-limit.
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.
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.
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.
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
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
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.
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
Direct Discrimination: Race
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.
Claimant claimed that his dismissal amounted to less favourable treatment and
that such less favourable treatment was because of his nationality (ie race).
find that the First and Second Respondents directly discriminated against the
Claimant because of the protected characteristic of race (which includes
Automatic unfair dismissal
to the Claim Form, the First Respondent employed the Claimant for twelve weeks
between 29 November 2018 and 24 February 2018.
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.
Article 70A of the Employment Law provides as follows:
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]"
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.
above finding that the Claimant’s dismissal was an act of discrimination
means that he falls within the provisions of Article 70A.
therefore find that the Claimant was unfairly dismissed by the First Respondent.
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.
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
Claimant provided the following information regarding his financial losses:
Claimant’s effective date of termination of his employment
(“EDT”) was 24 February 2018;
his employment with the Respondent, the Claimant’s normal weekly wage was
£432 per week;
Claimant started new permanent employment on 16 April 2018;
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
Claimant also worked for one day road resurfacing, although he was unsure of
his exact rate of pay for that day.
behalf of the Respondents, Mr Sutcliffe provided the following information at
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
the time of the Claimant's employment, the First Respondent employed between 15
to 20 employees;
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;
Sutcliffe confirmed that the Respondent provided induction training to new
employees but he did not know whether such induction training included
discrimination training; and
the time of the Claimant’s dismissal, the Second Respondent had only been
employed for approximately six weeks.
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
(1 week @ £280 = £280)
(1 day @ £64 = £64)
(calculated on the basis of £8 per hour for an 8 hour day)
Total = £2,680
therefore award the Claimant £2,680 by way of compensation for
financial losses arising from direct discrimination.
Direct Discrimination: Hurt and Distress
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.
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.
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
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.
this case, I noted that:
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
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
the First Respondent could actually dismiss the Claimant, albeit through the
medium of the Second Respondent;
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
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.
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
The First Respondent
shall pay to the Claimant the sum of £864 by way of compensation for unfair
Summary of Award to
be paid by First Respondent
for automatic unfair dismissal
Mrs H G Griffin, Chairman
9 July 2018