Jason Elliott was called to the Bar of Northern Ireland in 2013 and is the Associate Head of School of Law at Ulster University. As a practising barrister, he has developed a largely civil practice representing individuals, companies and public bodies in litigation. This covers a wide range of areas including personal injuries, wills and employment law. In terms of employment law, he has represented both applicants and respondents in the Industrial Tribunal. At Ulster University, Jason lectures extensively on the civil areas of practise such as Equity and Trusts and delivers employment law lectures for both undergraduate and postgraduate students.
The claimant, a Romanian national, was employed by the respondent from 3rd January 2017. He was employed as a Factory Operative assembling vacuum cleaners. There were issues that arose with the claimant’s performance and attitude which could be seen through the communication between the managers of the respondent. The claimant issued a grievance relating to five separate issues which all involved shouting from managerial staff directed towards the claimant as well as swearing at him. In the grievance there was a suggestion that he had faced this treatment because of his race.
A hearing was held in relation to the grievance on 7th January 2019 but the outcome was that it was not upheld. The finding was that the claimant’s behaviour had contributed to most of the incidents and it was also found that other incidents he alleged had happened, had not in fact happened at all. There was no evidence that the events that had taken place were due to the claimant’s race. The claimant appealed this decision but was unsuccessful.
The Tribunal outlined that the burden was on the claimant under Section 136 of the Equality Act 2010 (it is within case law in Northern Ireland) that they would have to show a prima facie case that the action was discriminatory. In examining the particular allegations that were made the Tribunal could not make any findings that related to the race of the claimant. Instead, whilst there was a suggestion that he was treated like a second-class citizen compared to those who were English, this was not borne out from the incidents were he had been shouted at. The Tribunal did outline that they felt the claimant was honest and genuine but that the Tribunal must look at the evidence and as he was not able to demonstrate some prima facie evidence of direct discrimination or harassment through the actions of the respondents his claim failed.
Practical Lessons
This case demonstrates the workings of the burden of proof when it comes to discrimination claims. It must be remembered that it is for the claimant to show that there has been a discriminatory act and this threshold can cause some difficulties for claimants. In this case, the Tribunal made it clear that the claimant was honest and genuinely believed in the case that he was making but there must be something that the claimant can show or prove in relation to there being a discriminatory act.
https://www.gov.uk/employment-tribunal-decisions/mr-l-costina-v-numatic-international-ltd-1400601-2019
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