Background:

The claimant, a Bulgarian national, worked for the respondent from July 2013 to 2015 and then from August 2017 until her employment ended in July 2019.  The claimant was contracted 40 hours per week yet the claimant asserted that she was forced to work approximately 130 hours per week. She also asserted that she was denied work breaks and annual leave.  It was accepted, however, that she took three weeks off in January ’18 and ’19 to travel to Bulgaria.

In June 2019 an altercation took place between the claimant and other members of staff.  The claimant did not deny this.  The second respondent, the Director (a French national) of the first respondent sought to speak to the claimant about the incident.  A further altercation allegedly took place at this point with it being claimed that the claimant pushed the Director, made threats to kill him.  The claimant, on the other hand, stated that she was attempting to talk about working hours and that she would report him to the relevant authorities.  Neither party called any witnesses to support their version of events.  Following this the respondent closed the restaurant the next day.

The respondent met with the claimant on 4th July outlining that she was to be suspended on full pay pending investigation.  The claimant refused to leave requiring the PSNI to attend.  A further meeting took place on 11th July but the suspension remained in place.  Despite this the claimant returned at 4pm that day and had to be removed with the assistance of the PSNI.  The claimant then left her accommodation, provided by work, on 21st July 2019 and in the absence of any further evidence on the matter the Tribunal took that as the date at which the employment relationship ended.   The claimant brought claims for race discrimination and unfair dismissal.

Outcome:

In terms of the claim for unfair dismissal, it was the respondent’s case that the claimant voluntarily left her employment rather than be dismissed.  The Tribunal agreed citing that on 4th July the claimant was suspended from work rather than dismissed.  However, the process could not be completed as the claimant left her work accommodation and the Tribunal stated that the respondent was entitled to treat that as evidence of the claimant terminating her employment.

On the race discrimination claim, the claimant primarily relied upon the allegation that she was denied annual leave because she was foreign. The Tribunal noted that there was limited evidence in this regard, there was no comparator identified and no witnesses to attest to the claimant’s allegation.  As a result, it was held that there was no prima facie evidence of race discrimination.  As a result, the case was dismissed.

Practical Guidance for Employers:

The decision made in relation to dismissal is interesting.  The Tribunal found that there was no dismissal as there had only been a suspension.  However, the claimant had not formally tendered any resignation either formally or informally.  Instead, it was only through leaving the work given accommodation which was treated as leaving the work.  However, considering that she was suspended from work it seems rather harsh to treat the work given accommodation as such a contingent part of the work itself that leaving it would amount to a resignation without any requirement to go through or contact the claimant regarding the disciplinary process.

NI Tribunal decisions are available on the OITFET website: http://www.employmenttribunalsni.co.uk/