Review of Nenad Zubin v Brett Martin Ltd Case Ref 261/08ITPosted in : Supplementary Case Law NI on 16 March 2010 Issues covered:
In the case of Nenad Zubin v Brett Martin Ltd Case Ref 261/08IT, the Tribunal awarded the Claimant the substantial sum of £53,596 when it unanimously decided that he was unfairly dismissed and discriminated against on grounds of race. The case ran for 2 weeks in December 2009 and the Tribunal heard evidence from eighteen witnesses, including a Consultant Psychiatrist and an Occupational Health Physician. The Tribunal made a number of findings in relation to the role and duties of Human Resources in the case.
The Claimant worked for the Respondent from 5th October 1995 and his work involved operating a large extruder machine, which produced plastic sheeting. The Claimant was dismissed on 8th November 2007 for gross misconduct for sleeping and for a breach of health and safety on 30th October 2007 when he was discovered by his supervisor, lying on the floor near his machine in the bay in which he worked.
The Tribunal noted that at the heart of this case was a direct conflict in evidence between the parties and after careful assessment, the Tribunal preferred the evidence of the claimant and his witnesses. Interestingly, the Tribunal noted that “the claimant and his witnesses were on the whole consistent, clear and specific about matters whereas the respondent’s witnesses, in the main, chose their words carefully, in some instances were evasive in the answers they gave and in other instances relied on their records to assert that matters had not been raised despite the claimant and his witnesses’ clear recollection to the contrary”.
The Tribunal further noted that “two of the respondent’s witnesses in particular, who still work for the respondent, appeared to the Tribunal to be fearful to the point of being terrified to say anything that might be detrimental to the respondent’s case” and “that these witnesses appeared more anxious and fearful than is usual”.
The Tribunal concluded that a culture prevailed in the Respondent company whereby racist bullying continued on an ongoing basis to such an extent that it must have been known of by management and HR generally. In particular, the Tribunal concluded as follows:
Offensive graffiti including racist graffiti, racist comments and complaints not being followed up by management formed the backdrop for the claimant in the respondent’s employment.
Serious racist bullying of the claimant by his supervisor went on in a continuing basis and this was not only tolerated by management it was effectively condoned by the respondent’s management receiving complaints and doing nothing about it.
Managers regarded the claimant as a troublemaker because he had made complaints. The Tribunal regarded it as reasonable for the claimant to have connected the racist harassment by his supervisor, the inaction by managers when the complaints were made, and the bullying by another Manager to the fact that he was Croatian without him having to specifically flag that up.
The role of HR
HR was in a position to have an overview of the relationship the claimant had with his managers at all levels. In was incumbent on HR and managers to be proactive in ensuring that the claimant did not have to endure working conditions where he faced serious racist harassment on a continuing basis quite openly in the company.
HR was aware of the claimant’s ongoing stress problem and that he had been diagnosed with a stress disorder. When problems arose between the claimant and his managers relating to his work performance and specifically relating to the incident in October 2007 which led to dismissal, it was for HR to see the connections. The duty of HR is not necessarily to share details with managers but to tell managers, “There’s more to this than meets the eye”. It was up to HR to steer the process and they failed to connect the matters and see the wider picture.
The Tribunal found it “reprehensible that HR did not ensure that it was taken into account that the claimant suffered from ongoing stress and had a history of a stress disorder particularly as Mr McC’s medical condition was taken into account in his favour”.
The Tribunal had no hesitation in concluding that the behaviour of the Claimant’s supervisor towards him constituted gross harassment on grounds of race. The Tribunal noted its shock that the Claimant’s supervisor and others got away with making such racist comments and nothing was done about it despite the claimant’s complaints to a number of Managers. The Tribunal heard no evidence in relation to attempts made by the Respondent to ensure that such treatment did not occur or of any training given to workers or managers in this regard and held that the employer’s defence was not made out. The respondent was vicariously liable for the Claimant’s supervisor’s acts and was therefore liable for the discrimination perpetrated by him.
The Tribunal regarded the investigation and appeal into the grievance as inadequate in respect of a grievance against a manager where there was a background of complaints and problems about serious racist bullying which had been reported to managers on several occasions and nothing had been done previously. “It was up to HR to ensure that the investigation and appeal did not have a narrow focus given their knowledge of the previous incidents and given their knowledge of the claimant’s medical position.”
The respondent’s HR department and other managers knew the claimant had suffered a bullying campaign of racist harassment, had complained and nothing had been done.
Action against the Claimant
The Tribunal took the view that the claimant’s fate was sealed when he raised a grievance against Mr O’Neill as there then proceeded a pattern of incidents where it was clear that the company, through its managers, were carefully monitoring the claimant to see if they could catch him out. Any transgression was jumped on in contrast to Northern Ireland workers.
On 2 May 2007 the claimant received a recorded verbal warning. The Claimant’s comparator did not receive a warning nor was his work scrapped for a defect of similar gravity to that for which the claimant received a recorded verbal warning. The Tribunal concluded that the claimant was disciplined because he had previously made complaints of racial harassment and therefore this amounted to victimisation because of the protected act.
In July 2007 the claimant was treated less favourably than Northern Ireland workers in relation to obtaining medical information on his wife’s condition. The difference in treatment was that the claimant was required to produce such information when the Northern Ireland workers were not. The Tribunal found that this constituted an act of victimisation on grounds of race as the adverse treatment stemmed from the claimant’s complaints and the grievance raised about a Manger.
On 4 October 2007, the claimant was forced to take sick leave when he raised an issue of suspected vertigo. The claimant asked for light duties as an alternative to being put off work but was told that this was not possible. The claimant compared his situation to that of Mr B who was given light duties when he had a leg injury. The Tribunal concluded that the claimant suffered detrimental treatment due to his having raised a complaint involving racist comments, that light duties could have been given to the claimant and were not and, that forcing the claimant to take sick leave constituted less favourable treatment, particularly in circumstances where he was told that that absence, added to previous absences, could result in disciplinary procedures if he took another absence. The Tribunal found that this constituted a further act of victimisation.
The claimant asked for a transfer to another shift in October 2007 because of problems relating to racist treatment. This typified, in the Tribunal’s view, managers’ and HR’s attitude to him as management were quick to jump on anything that could be a criticism of the claimant but failed to deal with anything he raised. The Claimant heard nothing in response from management or HR.
The disciplinary process
It was entirely proper for the respondent to consider very carefully the dismissal incident due to the health and safety implications. The Claimant’s supervisor was the trigger for the disciplinary process. He kicked the claimant, which the Tribunal noted as absolutely unacceptable. There was, however, no question of the Claimant’s supervisor being admonished or sanctioned for dealing with a subordinate worker in that way. The Tribunal felt that the respondents should have paused before disciplining the claimant because the Claimant’s supervisor was someone the claimant had complained about and HR knew about it. The Tribunal believed that management also knew about the problems between the claimant and his supervisor as well as several members of HR.
At the disciplinary meeting, the claimant immediately compared himself to Mr McC who had been found sleeping the day before the claimant’s incident. There was no evidence that the claimant was actually sleeping and the claimant emphatically denied he was sleeping. Despite the claimant making 17 separate references to bullying, discrimination, being singled out, being picked on and allegations of racial abuse and bullying, the Respondent ignored those references and dealt with the matter simply as a disciplinary issue related to health and safety. The Tribunal found that there was no excuse for failing to look at the wider points made by the claimant. There was a lengthy background of incidents of bullying harassment, being picked on and of complaints that were made and not followed up on and of a recent pattern of the claimant being warned or admonished for work. The Tribunal found that “the link between all these matters was the HR department. There were extenuating circumstances known to the respondent in the form of its HR department and these circumstances namely the medical background should have given the respondent pause to consider how to deal with the claimant. The respondents’ managers were too hasty to dismiss the claimant.”
The claimant was dealt with less favourably than Mr McC in that, despite the respondent’s knowledge of his medical condition, he was dealt with less sympathetically. They failed to get the doctor to comment on the claimant as they did with Mr McC.
Mr Steele was not an experienced manager and whilst the disciplinary decision was his, HR had a very important function to play in ensuring that the wider picture could be looked at if there were other matters which could be of relevance.
No contributory conduct in relation to dismissal
The Tribunal concluded that the claimant’s dismissal amounted to an act of victimisation on grounds of race and was therefore discriminatory and unfair. The Tribunal found no evidence of contributory conduct given its findings on the difference in treatment afforded to the claimant in relation to his dismissal when compared to that afforded to Mr McC.
The claimant raised a grievance after his dismissal alleging continuous discrimination and harassment which in the Tribunal’s view amounted to a valid grievance letter. No grievance procedure was followed by the Respondent and no evidence was given as to why this was the case. The Tribunal therefore decided to award the maximum uplift of 50% to the compensatory award related to the discriminatory acts other than dismissal.
Injury to feelings and other awards
The Tribunal regarded the case as falling within the top band of Vento and awarded the sum of £20,000 comprising £10,000 for the discriminatory dismissal and £10,000 for all other acts of discrimination. The Tribunal further awarded the sum of £1,500 as a reasonable reflection of the psychiatric injury suffered by the claimant over and above the injury to feelings. Ultimately the Tribunal did not regard this as a case where aggravated damages were warranted, having incorporated in the award for injury to feeling the aggravating features of this case. The Claimant was further awarded a basic award of £3960, total financial loss of £16,406, loss of Statutory Rights of £330, 50% uplift on compensatory award relating to discrimination other than dismissal of £5,750 and interest of £5,650.
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