The claimant is a Spanish national and began working for the respondent as a Class 2 HGV Driver in December 2016.   This was initially as an agent worker, but he then worked full time between March and May 2017 and then from June 2017 until the relationship ended on 4th May 2018.  This was one of the issues as the respondent suggesting that he had ended his contract in May 2017 and a new one commenced in June 2017 (as the claimant had started and stopped a new job in the intervening period).  The claimant believed that his contract had never been terminated.

A number of issues arose within the employment.  It is not possible to go through every single detail but most of it involved Mr McNally, the Warehouse and Logistics Manager and their working relationship.  For example, the claimant was requested to do a delivery run at 4.30pm when he was due to finish at 5pm.  Indeed, the only other foreign driver was requested to go with him even though it would usually be a driver’s mate who would take on that role.   Furthermore, the claimant made a number of complaints about the lack of lunch breaks, the jobs that he was allocated and the amount of overtime he was given.  For that reason, he requested to work in the warehouse rather than as a driver.  This was refused on the basis that there were no vacancies.  Mr McNally in response stated that there was a different work ethic in Northern Ireland compared to what would be seen in other countries such as Spain.   Mr McNally, in evidence suggested that it was not about his race but rather about the different work ethics that may be seen in particular countries.

The management of the company then had meetings with the claimant about his issues and stated they would work through the issues.  However, they then changed their minds and Mr McNally was informed to tell the claimant that there was no more work in the company for him.  This was on the basis that they believed it was a zero hours’ contract.  In fact, the respondent had hired new drivers and they did have work.  It was only after the claimant started to raise issues with how he had been dealt with that there was then a written report from a driver’s mate about the claimant’s work and about damage caused to one of the vans.

In considering the facts and the law, the Tribunal held that there had been race discrimination on the basis that he was treated differently because of his Spanish nationality. When the burden shifted to the respondent, they were unable to show that the dismissal and other actions were not in any way connected to his nationality. The claimant was also unfairly dismissed as the statutory procedures were not followed at all and for that reason there was an uplift awarded for the compensation. Additionally, there was no written statement of employment particulars given and four weeks’ pay was awarded.

Practical Lessons

This case demonstrates how employers need to be mindful of ensuring proper employment practices even in situations where the same individual may have left and then re-commenced employment.  There was a failure to provide a proper statement of employment particulars and there were then issues that arose in relation to a zero hours’ contract.  This led to confusion which was the catalyst for what followed.  There is also a need to ensure that decisions are made for proper reasons rather than managers making decisions based upon the claimant’s nationality or their understanding of ‘work ethic’.

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