Murray v Fine Foods (Lisburn Road) Ltd ... [2016] NIIT 00883

THE INDUSTRIAL TRIBUNALS

CASE REFS: 883/15

1353/15

CLAIMANT: Jessica Murray

RESPONDENTS: 1. Fine Foods (Lisburn Road) Ltd, t/a Shu Restaurant

2. Julian Henry

3. Brian McCann

DECISION

The unanimous decision of the tribunal is that:-

(i) The claim alleging unlawful discrimination on the grounds of age and gender is dismissed.

(ii) The claim of unlawful victimisation is dismissed.

(iii) The claim of constructive and unfair dismissal is upheld. The claimant is awarded £5,942.38 calculated as set out in this decision, comprising £1,014.12 basic award and £4,928.26 compensatory award.

(iv) The claimant is also awarded £1,014.12, being four weeks’ gross pay in respect of the first-named respondent’s failure to provide any statement of terms and conditions of service.

(v) The total amount payable to the claimant is £6,956.50.

Constitution of Tribunal:

Vice President: Mr N Kelly

Members: Mr W Mitchell

Ms E McFarline

Appearances:

The claimant was represented by Ms Rachel Best, Barrister-at-Law, instructed by Jones Cassidy & Jones, Solicitors.

The respondents were represented by Mr Neil Philips, Barrister-at-Law, instructed by Worthingtons, Solicitors.

Background

1. The first-named respondent is a limited company which operates a restaurant located on the Lisburn Road, Belfast. That company is effectively owned by Mr Alan Reid.

2. At the relevant times the second-named respondent was the restaurant manager. He was the line manager of the front-of-house staff, ie the waiters, bar staff and service staff generally.

3. At the relevant times, the third-named respondent was the head chef. He was the line manager for all the chefs and the kitchen staff generally.

4. At the relevant times, the claimant was a third level student and then a post-graduate student. She worked in the restaurant to support herself through her studies. Her permanent line manager was the second-named respondent, although she would have had other duty managers from time to time on days when he was absent. She was engaged on a zero hours contract with no guaranteed hours or shifts. She received no written statement of terms and conditions of employment at any stage during her employment.

5. The claimant commenced work during the summer of 2012. After an initial period of other work and of training, she then worked as a section waitress. She resigned some three years later on 27 June 2015.

6. The claimant alleges:-

(i) That she had been unlawfully discriminated against on the grounds of age and gender, contrary to the Sex Discrimination (Northern Ireland) Order 1976 and the Employment Equality (Age) Regulations (Northern Ireland) Regulations 2006.

(ii) That after raising a grievance in relation to the above matters, she had been unlawfully victimised contrary to the both the 1976 Order and the 2006 Regulations.

(iii) That she had been constructively and unfairly dismissed contrary to the Employment Rights (Northern Ireland) Order 1976.

(iv) That she had not received a written statement of terms and conditions of employment contrary to Articles 27, 33 and 36 of the Employment (Northern Ireland) Order 2003.

Procedure

7. These claims had been case-managed and detailed directions had been given both in relation to the interlocutory process and in relation to the use of the witness statement procedure.

8. Apart from one witness (Rebecca Robb) who appeared on foot of a Witness Attendance Order which had been requested by the claimant, each witness gave their evidence-in-chief in the form of a witness statement which had been exchanged in advance of the hearing. Each such witness adopted their witness statement as their evidence-in-chief and moved immediately into cross-examination and brief re-examination.

9. The claimant gave evidence on her own behalf. Ms Leah Robb and Ms Karolina Mackiewicz gave evidence on her behalf using the witness statement procedure. Ms Rebecca Robb, a sister of Ms Leah Robb, gave oral evidence-in-chief on foot of a Witness Attendance Order which had been sought by the claimant.

10. The following witnesses gave evidence on behalf of the respondents, all using the witness statement procedure:-

(i) Mr Alan Reid, the owner of the first-named respondent;

(ii) Mr Julian Henry, the second-named respondent;

(iii) Mr Brian McCann, the third-named respondent;

(iv) Ms Mairead Donnelly, the accountant of the first-named respondent;

(v) Mr Glen McCalmont, a waiter and occasional duty manager in the restaurant; and

(vi) Mr Sebastian Baranowski, a barman working in the restaurant

11. The hearing lasted for five days from 8 August 2016 to 12 August 2016. Because of difficulties in agreeing figures in relation to potential remedy under the various heads of claim, the hearing proceeded in relation to liability only for the first four days to enable discussion to continue. At the conclusion of the evidence in relation to liability during those first four days, the claimant was recalled on the fifth day and gave further oral evidence in relation to remedy and mitigation of loss. The parties had exchanged and had agreed some figures. Further figures were to be agreed and supplied to the tribunal by 15 August 2016. They were not supplied.

12. The parties were directed to lodge written submissions in relation to both liability and remedy in the tribunal by 5.00 pm on 19 August 2016. The exchange of those submissions between the parties was left to their respective counsel to arrange between themselves.

13. The tribunal panel met on 22 August 2016 to consider those submissions and the evidence and to reach its decision. This document is that decision.

14. Before turning to the individual detailed findings of fact, the tribunal’s overall impression of this case is that two factors were dominant in this case. Those factors were:-

(i) Inappropriate behaviour by both staff and management had not been corrected appropriately and had been allowed to continue. Shouting and displays of temper appear to have been accepted as the norm.

(ii) The claimant had difficulties accepting instruction or guidance from management.

15. It seems regrettable to this tribunal that the combination of these factors and, in particular, the poor management of staff in the restaurant led to the conclusion of the claimant’s employment. This is a case which could, and should, have been avoided and which should never have come to this tribunal. No-one comes out of this case well.

Credibility

16. That said, the tribunal has serious concerns about the credibility of many of the witnesses in this case. This has left the tribunal with the difficult task of sifting through the detritus of discredited and damaged testimony, applying the different burdens of proof appropriate to the different heads of claim, in an effort to determine this matter. The claimant and her witnesses exaggerated and misrepresented their evidence in a concerted effort to paint what was, at its height, a constructive dismissal case as a case of unlawful discrimination. The first, second and third-named respondents gave evidence which was at times less than credible. Admissions, when they were made, had to be dragged from them during cross-examination.

17. Ms Karolina Mackiewicz gave evidence voluntarily on behalf of the claimant. She had worked as a waitress employed by the first-named respondent in the restaurant at a period before the claimant had ever been employed. She did not know the claimant and had never worked with her. She nevertheless provided a witness statement and gave evidence to this tribunal at the request of Ms Leah Robb, a friend of the claimant. Her written statement was remarkably similar in format and length to that provided by Ms Leah Robb. Both were on one side of the one page and both were headed ‘to whom it may concern’, or ‘to whom it might concern’.

18. In Ms Mackiewicz’s statement, she complained that ‘everything that I have done was always criticised by supervisors’ [tribunal’s emphasis]. It is highly unlikely that ‘everything’ she did had ‘always’ been criticised. She complained particularly about the third-named respondent and alleged that she had been bullied on the grounds of both her nationality and her gender. She alleged that because of this bullying, she had been driven out of her job and in her cross-examination alleged that she had suffered depression as a result.

19. These were serious allegations. She was alleging that she had suffered constant unjustified criticism and both racist and sexist bullying, leading to mental ill-health. It is difficult to imagine more serious allegations in a workplace. Yet there had been no complaint at the time to Mr Reid. There had been no tribunal claim at the time or indeed since. Furthermore, Ms Mackiewicz had attended the restaurant recently as a customer and had both hugged and kissed the third-named respondent who she has alleged had been a racist and sexist bully. She had earlier, at one point, left this apparently intolerable working environment for a period but had then returned for a further period of employment for two years. In cross-examination, Ms Mackiewicz persisted in alleging that her mental ill-health had been caused by workplace bullying. The tribunal notes that her friend and her colleague, Ms Leah Robb, confirmed in her cross-examination that she had been unaware of her depression. In any event, Ms Mackiewicz’s relationship with her boyfriend had been breaking up towards the end of the employment. She herself described her relationship with her boyfriend as ‘toxic’. Ms Leah Robb in giving evidence during cross-examination said that this relationship between Ms Mackiewicz and her then boyfriend had upset Ms Mackiewicz. Ms Mackiewicz however asserted in her own cross-examination that she had not been affected by this break-up in the relationship. Her difficulties had, according to her, all been due to bullying in the workplace to which she had voluntarily returned for a period of two years and in respect of which she had made no complaint to either the first-named respondent or to this tribunal.

20. Ms Mackiewicz’s mother had worked for the first-named respondent as a cleaner in the restaurant and still works there in that capacity. She accepted that she had not warned her mother about this alleged racist and sexist bully and she seems unconcerned about her mother’s continued employment in that environment.

21. The tribunal has serious doubts about the credibility of this evidence. It seems highly improbable that Ms Mackiewicz had been subject to ‘constant’ criticism or indeed to both racist and sexist bullying. If that had been the case, she would not have hugged and kissed the alleged racist and sexist bully. Her explanation in cross-examination that this ‘was all in the past’ is unconvincing. Such a forgiving attitude could be regarded as positively saintly, but it does not sit easily with her decision to give evidence in this tribunal to support someone she didn’t know. If it had indeed been ‘all in the past’, what was she doing in the tribunal? Furthermore, no one would voluntarily have returned to such treatment and no one would have remained for a further two years in such employment. Service jobs are not that hard to come by in Northern Ireland.

22. The tribunal therefore cannot give any credence to this evidence on behalf of the claimant.

23. Ms Leah Robb also gave evidence voluntarily on behalf of the claimant. She had left the employment of the first-named respondent in July 2016 after her relationship with the first-named respondent had broken down. That was not mentioned in her witness statement as it should have been. That witness statement again makes serious allegations. It annexed a letter which she has sent to the first-named respondent in support of the grievance lodged by the claimant. However it is notable that, apart from one instance early in her employment, she had never raised any grievance on her own behalf with her employer over a lengthy period of employment.

24. The tribunal is concerned that Ms Leah Robb in her evidence had a tendency to overstate and to exaggerate matters and that she may well had been motivated by a grudge against the respondents. For example, one of the more serious allegations made by Ms Leah Robb was that Mr Reid had ‘done nothing’ about the grievance lodged by the claimant. The tribunal had heard evidence that Mr Reid had taken certain steps to deal with that grievance. Those steps included consulting with the Labour Relations Agency, interviewing some witnesses, offering mediation, and reaching a conclusion that management had been wrong at times. While those steps may well have fallen somewhat short of an appropriate approach to the grievance, the allegations of Ms Leah Robb that he had ‘done nothing’ were exaggerated and incorrect. It was not true to say that Mr Reid had ‘done nothing’.

25. A feature of this case was that, while the claimant and her witnesses were anxious to ascribe a discriminatory motive to conduct within the restaurant, they were confused about the precise nature of that motive. Ms Leah Robb alleged that gender had been the reason for detrimental treatment within the restaurant. Ms Mackiewicz had alleged that it had been both nationality and gender. The claimant alleged a particular combination of both age and gender but was emphatic that it had been on neither of those grounds separately. The tribunal is left with the conclusion that these three individuals felt aggrieved but that they were in some considerable confusion as to the alleged basis for their grievances.

26. Ms Leah Robb alleged in cross-examination at one point that she ‘never’ seen male workers being ‘bawled’ at. That quite startling statement was rapidly changed to a statement that male workers had not been ‘bawled at to the same extent’. Ms Robb made an emphatic and potentially damaging statement which was untrue and which did not stand up to scrutiny.

27. Ms Leah Robb accepted in cross-examination that at the early stage of her employment which had lasted over 10 years, she had made one complaint about two fellow employees and also accepted that that complaint had been resolved satisfactorily. She also accepted that she had been accorded respect in the workplace. Since she was obviously a female and since she was strenuously trying to make the case that there had been constant gender discrimination in the workplace, that evidence is a little difficult to reconcile with her position. Again there seems to be a significant element of exaggeration, motivated by grudge.

28. Ms Leah Robb was referred in the course of cross-examination to a Trip Advisor report by a customer which had described her as ‘plain rude’ and which had stated that she had ‘an attitude problem’. Ms Robb had e-mailed Mr Alan Reid with extensive comments on this report. He had responded to her almost immediately to say:-

“Thank you for taking the time to give Julian (Henry) and I your thoughts on this matter. I have only just read your e-mail and I need to devote more time (hopefully later today) to absorbing everything you said before being able to respond properly, so please bear with me. The reason I am sending you an e-mail immediately is because I really do not want you feeling distressed or worried although I completely understand you being upset by this whole episode. I also want to leave no room for uncertainty; I value your contribution to Shu extremely highly; you are an asset and an extremely valued member of the team. On top of that, our lives have been intertwined over 10 years and I see and talk to you more than any member of my own family. That matters a great deal to me.”

29. Ms Robb accepted in cross-examination that this had been ‘an incredibly pleasant and heartfelt response’.

30. Again, the evidence in relation to that matter is difficult to reconcile with the basic thrust of Ms Robb’s evidence that there had been a pattern of gender discrimination which had somehow passed her by but had focused on other members of staff. Furthermore, it indicates that Ms Leah Robb had been able, and indeed willing, to comment extensively on any issue that concerned her. That is difficult again to reconcile with the lack of any grievance on her part over a lengthy period of over 10 years (apart from the initial complaint which had been satisfactorily resolved in the early stages of her employment).

31. Another example of her approach to giving evidence in this matter was that in her letter of 23 November 2014 in support of the claimant’s grievance she complained about the second-named respondent’s references to the claimant’s weight. However, in her cross-examination, she accepted that banter and comments in relation to weight had passed in both directions between the claimant and the second-named respondent.

32. As indicated above, the tribunal has concluded that this witness is prone to overstate and to slant evidence to support what appears to be a grudge on her part in relation to the breakdown of her long standing employment relationship. She also appears to be friends with the claimant. Her evidence has to be treated with significant caution.

33. Ms Rebecca Robb attended on foot of a Witness Attendance Order which had been sought by the claimant. She is still employed by the first-named respondent working at Shu and has been working at Shu for a period of approximately 10 years.

34. In her oral evidence-in-chief and in cross-examination she stated that overall she had a good relationship with the second and third-named respondents. However she appeared keen to stress that after being interviewed by Mr Reid in relation to the claimant’s first grievance, the third-named respondent had ‘stopped speaking to me’. She maintained that position during her evidence-in-chief and throughout much of her cross-examination. Then she was asked how that could possibly have worked in practice. She then accepted that the third-named respondent had continued to speak to her as normal in relation to work and that he had answered every question that she had put to him in relation to work. She then stated that he had simply ceased, for a period, talking about social matters. That evidence is significantly different from the evidence which she had initially given. The fact that the third-named respondent, after being alerted to a complaint and after having been told to avoid ‘tit for tat’ confrontations, sought to restrict his conversations with staff to work matters is entirely different from an allegation that he had stopped speaking to Ms Robb. Again, this witness appears anxious to support allegations of inappropriate behaviour to the extent of exaggerating her evidence.

35. Ms Rebecca Robb stated throughout her evidence that the second-named respondent had never changed his ‘good’ relationship with her. That seems inconsistent with the evidence of the claimant and of the other two witnesses on behalf of the claimant. She stated that the claimant had been called ‘service’. However she accepted that she herself had been called ‘service’. She stated this had not been done at quieter times in the restaurant and that she had been called ‘service’ during those times when she was ‘not in favour’.

36. Much of her evidence appears to relate to matters which are trivial. She stated for example that in one instance she had been praised in relation to her work in promoting specials on the menu. She objected to the fact that she had been praised in front of the claimant. It is difficult to see any real basis for any such complaint. She also stated that in one incident the claimant had asked her to go upstairs to speak to the third-named respondent about a restaurant matter. The tribunal is unsure what that in effect proves. It may well have been the case that the claimant preferred Ms Rebecca Robb going upstairs to ask that question rather than doing so herself. She stated she had seen the claimant being ignored on occasion. However it is not clear in what context that had occurred. She also stated that she had heard the second-named respondent telling the claimant that ‘her ass was getting big’. However it is clear to the tribunal that Ms Leah Robb accepted that such comments had been made both by the claimant and by the second-named respondent.

37. Ms Rebecca Robb stated that she believed the claimant had been ‘treated badly’ by both the second and the third-named respondents but not by Mr Reid. She, a female, had had no difficulty at all with the second-named respondent and appears to have had very little difficulty, apart from during one period, with the third-named respondent. At several points in her cross-examination she accepted that the claimant had reacted differently to management instructions. She stated that the claimant would ‘had have something to say’ when she was told off. She ‘would not take it lying down’. She ‘stood up for herself’. She accepted that rows intensified when the claimant ‘had something to say in response’ to management instructions or criticism.

38. The impression created by Ms Rebecca Robb in her evidence was that the claimant had been treated differently because she had routinely answered back and had failed to accept management instructions. The third-named respondent in particular had been frustrated by her attitude. However she attempted to argue that this had been in some way related to age. She stated that “I have the maturity to deal with conflict”, “maturity comes with age” and that it was “because I was older I got more respect”. However she did not point to any differential treatment of other young workers.

39. As with the other two witnesses on behalf of the claimant, Ms Rebecca Robb appeared at points in her evidence to be anxious to attach inappropriate conduct or workplace conflict to one of the grounds protected under legislation. In her case she seemed to be referring to age alone. That again is a different emphasis to that adopted by the claimant and by her other two witnesses. The claimant alleged a composite of age and gender. Ms Mackiewicz alleged gender and nationality. Ms Leah Robb alleged gender alone.

40. In relation to an incident where the claimant had booked a particular table for her parents attending the restaurant and where that booking had been altered by the second-named respondent, Ms Rebecca Robb accepted that while she had not witnessed the row between the claimant and the second-named respondent, she had heard both voices from the restaurant floor. Her evidence added little in relation to this incident but she was anxious to stress that the claimant had been ‘tearful’. That does not indicate who started the row and how it developed.

41. The claimant’s evidence was also at points frankly incredible. For example, her core submission was that she had been the subject of unlawful discrimination. Under cross-examination she defined that alleged unlawful discrimination as a particular combination of discrimination on the grounds of age and gender but not on either of those matters separately. In other words, she stated that discrimination had been targeted at a particular group of young women. If she had been older, her treatment would have been okay. If she had been male, her treatment would have been okay. That does not sit easily with the evidence of her witnesses who apply different categories of discrimination to the same alleged inappropriate behaviour. Those categories range from gender alone; gender and nationality; and age. Even if the claimant’s evidence were to be considered on its own, it would require a particular and specialised type of bigot to focus his attention on one sub-category of humanity, ie young women, while he apparently did not feel any animus to equally young males and did not feel any animus against slightly older females. That all seems highly unlikely. Set against the background of a range of alleged discriminatory motives, the tribunal is left with the impression that serious attempts were being made to attach any unlawful motive to inappropriate behaviour. The precise nature of the unlawful motive did not matter.

42. Furthermore, on cross-examination, the claimant appeared particularly unsure of the alleged discriminatory grounds for the inappropriate behaviour. At one point she suggested that it would have been due, in part, to her affluent background. Then, when the Vice-President explained the limited statutory jurisdiction of the tribunal, she altered her position to state that it may have been due not just to a particular combination of the age and gender but to her community religious background. This had formed no part of the claim to this tribunal and this tribunal was not sitting as a Fair Employment Tribunal. Again, the overall impression left with the tribunal is that any prohibited motive would do and that accuracy was not really important to the claimant.

43. In relation to a particular incident involving a comparison between her and another member of service staff, Stephanie Grant, she alleged in her claim form that this had been ‘blatant discrimination’. This could only have been an allegation of unlawful discrimination in the context of the claim form. However both the claimant and Stephanie Grant were obviously female. Both were of the same age group. In fact, Ms Grant was two weeks’ younger than the claimant. Again the tribunal was left with the impression that what the claimant is complaining about is, in reality, inappropriate behaviour and that the particular legislative ‘hook’ for a discrimination claim does not really matter to her.

44. When this issue of a comparison between her and Stephanie Grant became an issue in cross-examination, the claimant, for the first time, alleged that Ms Grant had been favoured because her family had been regular customers of the restaurant. That evidence was unconvincing.

45. The claimant also alleged that the inappropriate behaviour in the workplace had been ‘detrimental to her mental wellbeing’. However when taken through her GP notes and records, it was clear that there had been no mention of any such matter during the relevant time. She stated that she had not wanted to mention it to her GP. That appears to the tribunal to be unconvincing. It was clear from those notes that she had been discussing sensitive matters with her GP, without any apparent difficulty. She had also been discussing migraines. If the claimant had been suffering from significant mental distress from workplace bullying, she would have mentioned it to her GP and it would have been recorded in the GP notes.

46. It was also clear that the claimant, one day after she had resigned her employment, had given an, albeit short, speech and presentation at a staff function. She had subsequently gone with members of staff, including the second-named respondent, to three separate bars and dancing venues within Belfast. While the claimant had not been obliged to exclude herself from social events, there was no evidence in any of that of her alleged ‘debility’ and no evidence of her alleged ‘fear’.

47. It is clear also that the claimant had been given significant responsibility and significant training by the first and second-named respondents. It is equally clear that she had been sent on two specialist wine courses by the first-named respondent. The first such course had been paid for by the first-named respondent and in relation to the second course the first-named respondent had paid fifty per cent of the cost.

48. The claimant accepted in her evidence that she had not been afraid to stand up for her rights and that she had queried matters when she felt that the circumstances required it. She was reluctant to accept that this might have contributed to her relationship with management.

49. In her evidence to the tribunal, she made a serious allegation against Mr Baronowski, the bar man. She alleged that the bar man had called her a ‘c***’ and that he had forcibly pushed her. Her handwritten notes which she had compiled at the time, refer to two separate incidents and that does not appear to have been replicated in her witness statement. In fact, her witness statement clearly alleges that it had been one incident, She said that “on one occasion Sebastian the barman called me a ‘useless c***’ while forcibly pushing me in the back”. In relation to the first incident in the handwritten notes, on 14 December, there is an allegation that Mr Baronowski called her a ‘useless c***’. There is no allegation that he had ‘forcibly pushed’ her in the back. In relation to the second incident in her handwritten notes on 23 November there was no mention of the word ‘c***’. She stated that she had been so upset by the language used that she forgot to include it in her handwritten notes. There was no explanation of how notes of an alleged incident on 14 December preceded notes of an alleged incident on 23 November. The claimant was clear in her cross-examination that these notes had been completed by her as soon as she got home after the relevant incident. Again all of that seems remarkably unconvincing.

50. Crucially, although the claimant, and her witnesses, accept that she had not been afraid to stand up for her position when required, she had not raised this matter as a complaint to her line manager, to the second-named respondent, or to the owner of the first-named respondent, Mr Reid. She is after all alleging that an assault had occurred and that particularly foul language had been used in the workplace. It is utterly inconceivable that the claimant, at any stage in her employment, would have allowed such behaviour go by without complaint. Furthermore the claimant accepts that she gave Mr Baronowski lifts home after the alleged incident (or incidents). Those lifts home were given on more than one occasion. She sought to excuse this in her cross-examination by stating that her female colleagues had advised her to let bygones be bygones and to be the bigger person. That strikes the tribunal as complete and utter nonsense. If such an incident or incidents had occurred in the course of employment, the claimant would not have put up with it, and her colleagues would not have put up with it. In particular, Ms Leah Robb stressed that she fought battles regularly on behalf of fellow employees. She was not called upon to do so on this occasion and it is inconceivable that she, or anyone else, would have told the claimant to forget about it and to tolerate such alleged behaviour.

51. In relation to remedy, the claimant asserted that she had consistently sought alternative employment after resigning from the first-named respondent. A bundle of documents had been produced to the respondents’ solicitors. That bundle related to 30 job applications. It included 26 acknowledgements dated 7 October 2015. When asked to explain why there had been such a cluster of job applications around that date, and not before or after that date, she was unable to do so.

52. The evidence on behalf of the respondents also raised issues of credibility. Mr Brian McCann, the third-named respondent, was the head chef. He had not been the claimant’s line manager but it is clear, and is not in dispute between the parties, that there would have been regular contact between him and the claimant and other service staff in connection with customer orders and in connection with menus.

53. He was very reluctant in the course of evidence to accept that he disliked the claimant. He ‘didn’t dislike her at work’. He ‘didn’t have a social relationship’. However he was very keen to stress that she had not been co-operative and that she had answered back regularly. She had avoided complying with simple instructions. It would have been more convincing to the tribunal if the third-named respondent had simply accepted what appears to be obvious; that he had a significant level of frustration with the claimant’s behaviour and that he disliked her. He spent a great deal of time evading the issue and asserting that he had an ‘average’ relationship with her. He did not want to say or to acknowledge what was clear; that he had not liked the claimant because of her manner.

54. His evidence in general in relation to his conduct in the workplace was that he shouted at everyone, including management, including male workers, female workers and, young or old workers. However his evidence was this had not been done in an ‘aggressive’ way. He asserted that there was a difference between shouting at someone and shouting towards someone. This however was done while he was, according to his own evidence, simultaneously seeking to avoid confrontation. It seems remarkably unconvincing.

55. The third-named respondent sought continually to downplay his interactions with the claimant. For example, when he was referring to the ‘half-eaten dessert’ incident he stated:-

“I didn’t want a confrontation with Jessica so I walked away”.

His statement gave the impression that the claimant had acted aggressively and that he had meekly turned the other cheek. That version does not sit easily with the statement he made to Mr Reid on 10 November 2014 when he stated:-

“This turned into a full-scale argument.”

That statement necessarily implies that he had participated; it takes two to make an argument.

56. Mr Julian Henry, the second-named respondent, seemed to be equally evasive at points in his evidence. For example, in relation to the allegation that he had made adverse comments about the claimant’s weight, he stated he had not done so. He stated he had ‘not to my knowledge’ done so. On further reflection and cross-examination he said he might possibly have done so in response to banter from the claimant. However that seems to being provoked by the evidence that such comments had passed both ways between the claimant and Mr Henry.

57. He stated in relation to allegations that he had wound up the claimant about her boyfriend and had teased her, that he would not have done so and that the claimant would only have asked him questions about her boyfriend to which he did not respond. That seems at odds with other testimony to the fact that there had been ongoing teasing and lengthy discussions. It seems highly unlikely that while he engaged in banter with the claimant on ‘weight’, the subject of the claimant’s boyfriend had been off limits.

58. Ms Rebecca Robb stated that when the claimant had gone upstairs to speak to Mr Reid about her first grievance following a row of some sort between her and the second and third-named respondents, the second-named respondent had described her as a twisted wee bitch’. He initially, in cross-examination, stated:-

“I don’t recall it”;

and then, when pressed, denied that he ever said it. That again seems unconvincing. There is no reason that Ms Rebecca Robb would have invented the allegation when speaking to Mr Reid on 10 November 2014. The second-named respondent had a history of losing his temper with the claimant. He accepts that during the ‘parents booking’ incident he had lost his temper and that he had told her ‘she knew where the door was’.

59. Mr Alan Reid had received two successive grievances from the claimant. In evidence he appeared remarkably reluctant to accept that he should have gone back to claimant with the result of the first grievance. After some considerable pressure during cross-examination, he accepted that ‘with the benefit of hindsight’ that he should have gone back to the claimant. It seems unlikely that he had only just come to that conclusion and it seems odd that he felt the need to at least initially defend his position before his final answer was dragged out of him. No one requires either the advice of the Labour Relations Agency or any specialised knowledge to know a complaint or grievance requires an answer.

60. It also seems clear that he had, when investigating the first grievance, concentrated on management evidence and that he had not properly investigated the matter. However again, he was very reluctant to accept that was the position. He argued that a significant factor in the difficulties within the workplace had been the claimant’s own behaviour and the fact that the claimant’s behaviour had not been dealt with properly by management. However it was equally clear that he did not, even at that stage, instruct management to deal with that behaviour and that he did not himself tackle the claimant about that behaviour. An acceptance that he had failed to resolve the first grievance again had to be dragged out of him.

61. He stated in relation to alleged further adverse behaviour between the first grievance and the second grievance that he “didn’t believe that it had continued”. However it doesn’t appear that any investigation into this had been conducted. It took some considerable effort in the course of cross-examination for Mr Reid to accept that again ‘with the benefit of hindsight’ the claimant might have thought that nothing at all had happened in relation to her first grievance.

The Relevant Law

Unfair dismissal

Constructive dismissal

62. In London Borough of Waltham Forest v Omilaju [2005] IRLR 35, the Court of Appeal (GB) set out the basic propositions of law relating to constructive dismissal. It stated that they were:-

“1. The test for constructive dismissal is whether the employers’ actions or conduct amounted to a repudiatory breach of the contract of employment: Western Excavating (ECC) Ltd v Sharp [1998] IRLR 27.

2. It is an implied term of any contract of employment that the employer shall not without reasonable and proper cause conduct itself in a manner likely to destroy or seriously damage the relationship of trust and confidence between employer and employee: see, for example, Malik v Bank of Credit and Commerce International SA [1997] IRLR 462, 464 (Lord Nicholls) and 468 (Lord Steyn). I shall refer to this as ‘the implied term of trust and confidence’.

3. Any breach of the implied term of trust and confidence will amount to a repudiation of the contract; see, for example, per Browne-Wilkinson J in Woods v WM Car Services (Peterborough) Ltd [1981] IRLR 347; 350. The very essence of the breach of the implied term is that it is ‘calculated or likely to destroy or seriously damage the relationship’.

4. The test of whether there has been a breach of the implied term of trust and confidence is objective. As Lord Nicholls said in Malik at p464, the conduct relied on as constituting the breach must “impinge on the relationship in the sense that, looked at objectively, it is likely to destroy or seriously damage the degree of trust and confidence the employee is reasonably entitled to have in his employer”.

5. A relatively minor act may be sufficient to entitle the employee to resign and leave his employment if it is the last throw in a serious of incidents. It is well put at para 480 in Harvey on Industrial Relations and Employment Law -

‘Many of the constructive dismissal cases which arise from the undermining of trust and confidence will involve the employee leaving in response to a course of conduct carried on over a period of time. The particular incident which causes the employee to leave may in itself be insufficient to justify him taking that action, but when viewed against the background of such incidents, it may be considered sufficient by the courts to warrant their treating the resignation as a constructive dismissal. It may be the ‘last straw’ which causes the employee to terminate a deteriorating relationship’.”

63. In Brown v Merchant Ferries Ltd [1998] IRLR 682, the Northern Ireland Court of Appeal said that although the correct approach in constructive dismissal cases was to ask whether the employer had been in breach of contract and not to ask whether the employer had simply acted unreasonably; if the employer’s conduct is seriously unreasonable, that may provide sufficient evidence that there has been a breach of contract.

Unfair dismissal

To ground a successful claim, a constructive dismissal must, of course, also be unfair.

64. Article 130 of the Employment Rights (Northern Ireland) Order 1996 provides:-

“130-(1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show -

(a) the reason (or if more than one, the principal reason) for the dismissal and

(b) that is either a reason falling within paragraph (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.

(2) a reason falls within this paragraph if it -

(b) relates to the conduct of the employee,

(4) where the employer has fulfilled the requirements of paragraph (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) -

(a) depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee; and

(b) shall be determined in accordance with equity and the substantial merits of the case.”

Sex discrimination

65. The Sex Discrimination (Northern Ireland) Order 1976 provides so far as materially relevant as follows:-

Article 6

“(1) A person (‘the discriminator) discriminates against another person (“the person victimised”) in any circumstances relevant for the purposes of any provision of this Order if he treats the person victimised less favourably than in those circumstances he treats or would treat other persons, and does so by reason that the person victimised has -

…

(d) alleged that the discriminator or any other person has committed an act which (whether or not the allegation so states) would amount to a contravention of this Order or give rise to a claim under the Equal Pay Act or under Articles 62 to 65 of the Pensions (Northern Ireland) Order 1995 or proceedings under Part I of Schedule 5 to the Social Security (Northern Ireland) Order 1989,

or by reason that the discriminator knows the person victimised intends to do any of those things, or suspects the person victimised has done, or intends to do, any of them.”

Article 8

“(2) It is unlawful for a person, in the case of a woman employed by him at an establishment in Northern Ireland, to discriminate against her -

(a) in the way he affords her access to opportunities for promotion, transfer or training, or to any other benefits, facilities or services, or by refusing or deliberately omitting to afford her access to them, or

(b) by dismissing her, or subjecting her to any other detriment.”

Article 63

“(1) A complaint by any person (“the complainant”) that another person (“the respondent”) -

(a) has committed an act of discrimination or harassment against the complainant which is unlawful by virtue of Part III, or

(b) is by virtue of Article 42 or 43 to be treated as having committed such an act of discrimination against the complainant,

may be presented to an industrial tribunal.”

Article 63A

“(1) This Article applies to any complaint presented under Article 63 to an industrial tribunal.

(2) Where, on the hearing of the complaint, the complainant proves facts from which the tribunal could, apart from this Article, conclude in the absence of an adequate explanation that the respondent -

(a) has committed an act of discrimination or harassment against the complainant which is unlawful by virtue of Part III, or

(b) is by virtue of Article 42 or 43 to be treated as having committed such an act of discrimination against the complainant,

the tribunal shall uphold the complaint unless the respondent proves that he did not commit or, as the case may be, is not to be treated as having committed, that act.”

Age discrimination

66. Regulation 3 of the 2006 Regulations provides:-

“(1) For the purposes of these Regulations, a person (‘A’) discriminates against another person (‘B’) if -

(a) on the grounds of B’s age, A treats B less favourably than he treats or would treat other persons, or

(b) A applies to B a provision, criterion or practice which he applies or would apply equally to persons not of the same age group as B, but -

(i) which puts or would put persons of the same age group as B at a particular disadvantage when compared with other persons, and

(ii) which puts B at that disadvantage,

and A cannot show the treatment or, as the case may be, provision, criterion or practice to be a proportionate means of achieving a legitimate aim.

(2) A comparison of B’s case with that of another person under paragraph (1) must be such that the relevant circumstances in the one case are the same, or not materially different, in the other.

(3) In this regulation-

(a) ‘age group’ means a group of persons defined by reference to age, whether by reference to a particular age or a range of ages; and

(b) the reference in paragraph (1)(a) to B’s age, includes B’s apparent age.”

Shifting burden of proof

67. The proper approach for a tribunal to take when assessing whether discrimination has occurred and in applying the provisions relating to the shifting of the burden of proof in relation to discrimination has been discussed several times in case law. The Court of Appeal re-visited the issue in the case of Nelson v Newry & Mourne District Council [2009] NICA -3 April 2009. The court held:-

“22 This provision and its English analogue have been considered in a number of authorities. The difficulties which Tribunals appear to continue to have with applying the provision in individual cases indicates that the guidance provided by the authorities is not as clear as it might have been. The Court of Appeal in Igen v Wong [2005] 3 ALL ER 812 considered the equivalent English provision and pointed to the need for a Tribunal to go through a two-stage decision-making process. The first stage requires the complainant to prove facts from which the Tribunal could conclude in the absence of an adequate explanation that the respondent had committed the unlawful act of discrimination. Once the Tribunal has so concluded, the respondent has to prove that he did not commit the unlawful act of discrimination. In an annex to its judgment, the Court of Appeal modified the guidance in Barton v Investec Henderson Crosthwaite Securities Ltd [2003] IRLR 333. It stated that in considering what inferences and conclusions can be drawn from the primary facts the Tribunal must assume that there is no adequate explanation for those facts. Where the claimant proves facts from which conclusions could be drawn that the respondent has treated the claimant less favourably on the ground of sex then the burden of proof moves to the respondent. To discharge that onus, the respondent must prove on the balance of probabilities that the treatment was in no sense whatever on the grounds of sex. Since the facts necessary to prove an explanation would normally be in the possession of the respondent, a Tribunal would normally expect cogent evidence to be adduced to discharge the burden of proof. In McDonagh v Royal Hotel Dungannon [2007] NICA 3 the Court of Appeal in Northern Ireland commended adherence to the Igen guidance.

23 In the post-Igen decision in Madarassy v Nomura International PLC [2007] IRLR 247 the Court of Appeal provided further clarification of the Tribunal’s task in deciding whether the Tribunal could properly conclude from the evidence that in the absence of an adequate explanation that the respondent had committed unlawful discrimination. While the Court of Appeal stated that it was simply applying the Igen approach, the Madarassy decision is in fact an important gloss on Igen. The court stated:-

‘The burden of proof does not shift to the employer simply on the claimant establishing a difference in status (eg sex) and a difference in treatment. Those bare facts only indicate a possibility of discrimination. They are not, without more, sufficient matter from which a Tribunal could conclude that, on the balance of probabilities, the respondent had committed an unlawful act of discrimination; ‘could conclude’ in Section 63A(2) must mean that ‘a reasonable Tribunal could properly conclude’ from all the evidence before it. This would include evidence adduced by the claimant in support of the allegations of sex discrimination, such as evidence of a difference in status, difference in treatment and the reason for the differential treatment. It would also include evidence adduced by the respondent in contesting the complaint. Subject only to the statutory ‘absence of an adequate explanation’ at this stage, the Tribunal needs to consider all the evidence relevant to the discrimination complaint such as evidence as to whether the act complained of occurred at all, evidence as to the actual comparators relied on by the claimant to prove less favourable treatment, evidence as to whether the comparisons being made by the complainant were of like with like as required by Section 5(3) and available evidence of all the reasons for the differential treatment.’

That decision makes clear that the words ‘could conclude’ is not be read as equivalent to ‘might possibly conclude’. The facts must lead to an inference of discrimination. This approach bears out the wording of the Directive which refers to facts from which discrimination can be ‘presumed’.

24 This approach makes clear that the complainant’s allegations of unlawful discrimination cannot be viewed in isolation from the whole relevant factual matrix out of which the complainant alleges unlawful discrimination. The whole context of the surrounding evidence must be considered in deciding whether the Tribunal could properly conclude, in the absence of an adequate explanation, that the respondent has committed an act of discrimination. In Curley v Chief Constable of the Police Service of Northern Ireland [2009] NICA 8, Coghlin LJ emphasised the need for a Tribunal engaged in determining this type of case to keep in mind the fact that the claim put forward is an allegation of unlawful discrimination. The need for the Tribunal to retain such a focus is particularly important when applying the provisions of Article 63A. The Tribunal’s approach must be informed by the need to stand back and focus on the issue of discrimination.”

68. In S Deman v Commission for Equality and Human Rights & Others [2010] EWCA Civ 1279, the Court of Appeal considered the shifting burden of proof in a discrimination case. It referred to Madarassy and the statement in that decision that a difference in status and a difference in treatment ‘without more’ was not sufficient to shift the burden of proof. At Paragraph 19, Lord Justice Sedley stated:-

“We agree with both counsel that the ‘more’ which is needed to create a claim requiring an answer need not be a great deal. In some instances it will be forwarded by a non-response, or an evasive or untruthful answer, to a statutory questionnaire. In other instances it may be furnished by the context in which the act has allegedly occurred.”

69. In Laing v Manchester City Council [2006] IRLR 748, the EAT stated at Paragraphs 71 - 76:-

“(71) There still seems to be much confusion created by the decision in Igen v Wong. What must be borne in mind by a Tribunal faced with a race claim is that ultimately the issue is whether or not the employer has committed an act of race discrimination. The shifting in the burden of proof simply recognises the fact that there are problems of proof facing an employee which it would be very difficult to overcome if the employee had at all stages to satisfy the Tribunal on the balance of probabilities that certain treatment had been by reason of race.

...

(73) No doubt in most cases it would be sensible for a Tribunal to formally analyse a case by reference to the two stages. But it is not obligatory on them formally to go through each step in each case. As I said in Network Road Infrastructure v Griffiths-Henry, it may be legitimate to infer he may have been discriminated against on grounds of race if he is equally qualified for a post which is given to a white person and there are only two candidates, but not necessarily legitimate to do so if there are many candidates and a substantial number of other white persons are also rejected. But at what stage does the inference of possible discrimination become justifiable? There is no single answer and Tribunals can waste much time and become embroiled in highly artificial distinctions if they always feel obliged to go through these two stages.

...

(75) The focus of the Tribunal’s analysis must at all times be the question whether they can properly and fairly infer race discrimination. If they are satisfied that the reason given by an employer is a genuine one and does not disclose either conscious or unconscious racial discrimination, then that is an end of the matter. It is not improper for a Tribunal to say, in effect, ‘there is a real question as to whether or not the burden has shifted, but we are satisfied here that even if it has, the employer has given a fully adequate explanation as to why he believed or he did and it has nothing to do with race’.

(76) Whilst, as we have emphasised, it will usually be desirable for a Tribunal to go through the two stages suggested in Igen, it is not necessarily an error of law to fail to do so. There is no purpose in compelling Tribunals in every case to go through each stage.”

Relevant Findings Of Fact

70. It is not in dispute that the claimant commenced work for the first-named respondent in February 2012. She initially worked as a ‘runner’ bringing food or plates to and from the tables and working under the supervision of others. The second-named respondent was the restaurant manager at that time who would have had overall control of the service staff including of the claimant. She would also have had regular contact with the third-named respondent who was the head chef. She had no complaints about any respondent during this period.

71. In the course of the summer of 2012, the second-named respondent asked the claimant to undertake additional responsibilities and to work as a section waitress taking charge of identified tables. The claimant accepted the offer. She was trained and closely supervised by the second-named respondent during this time. She would also have had regular contact with the third-named respondent. She had no complaints about any respondent during this period.

72. By Christmas 2012 the claimant was working regularly as a section waitress in charge of her own group of tables. She was again working under the management of the second-named respondent with regular contact with the third-named respondent. She had no complaints about either respondent or about indeed anyone else at this stage.

73. It seems clear from the evidence that, for whatever reason, relationships seemed to deteriorate between the claimant and management after February 2013. The claimant asserts that had been was due to a particular combination of her age and gender. It seems highly unlikely that the second-named and third-named respondents suddenly at that point noticed either her age or her gender for the first time, when they apparently had not noticed either when the claimant had started work or when she had been promoted or when she had been trained. It also seems highly unlikely that the increase in her age between January 2013 and February 2013 was of some significance.

74. The claimant did not allege in her claim form that other young female staff were receiving detrimental treatment because of a combination of age and gender. However she asserted in her cross-examination that young female staff had received such detrimental treatment but that she had not been sure whether to include that in her claim form. The tribunal does not accept that the claimant, who had been educated to third level stage, and who had been receiving advice from the Equality Commission in completing her claim form, would not have been aware that such an allegation should have been included in her claim form. The tribunal does not accept that there was any evidence before it that other young women were treated detrimentally and disproportionately on the basis of a combination of their age and gender.

75. In fact, the claim form, completed by the claimant with advice from the Equality Commission, appears to suggest, at one point, that detrimental treatment had been directed towards her in particular and not towards other members of staff. It stated:-

“This began about the week beginning 4 February, Brian McCann began to question my orders, knowledge and single me out for a large amount of abuse he did not seem to give to any other members of staff.”

76. The allegation that she had been singled out for abuse, and that it had not been given to ‘any other members of staff’ is not consistent with the allegation in cross-examination that she had been treated similarly to other young female members of staff.

77. The claimant stated that at this point after February and subsequently during her employment in the restaurant, that she had been discriminated against because of both gender and age but not simply because of age or simply because of gender. It had been a combination of the two factors. She asserted that older females were not discriminated against and that younger males were not discriminated against. That seems highly unlikely.

78. In her first claim form, the claimant alleged that a co-worker, Ms Stephanie Grant, had been treated more favourably. She alleged that she had been trained to move on to the section waitress post must faster than the claimant had been. She alleged that Ms Grant had not been questioned or threatened with discipline in relation to a particular incident where she had been threatened with discipline. She stated ‘this was blatant discrimination’. In the context of this claim form, this clearly had been a reference to unlawful discrimination. However Ms Grant was also female and was two weeks’ younger than the claimant, ie a young female employee. The tribunal concludes that this suggests that the claimant does not believe that her treatment had anything to do with a combination of age and gender.

79. It seems clear from the claimant’s own evidence and from that of the second and third-named respondents and indeed that of Ms Leah Robb and Ms Rebecca Robb that the claimant was notable in that she had been reluctant to take management instructions or management criticism at face value. She would have answered back and disputes would have intensified at that point.

80. The claimant complained, in particular, that the third-named respondent by the end of February 2013 had progressed to continually pretending not to know her name, simply referring to her as ‘the wee girl’ or ‘the child’.

81. It does not seem to be in dispute that the third-named respondent did on occasion refer to the claimant as ‘the wee girl’. He states that that is no more than a colloquialism and that he would equally have referred to young males as ‘the wee lad’. It is, according to the third-named respondent, a phrase in common usage and ‘part of who he is’.

82. It is not the case that the use of colloquialisms has been outlawed. Equally it is not the case that all references to age have been expunged from the Oxford English Dictionary. A simple reference to age is no more unlawful than a simple reference to gender. The issue is whether or not the phrase used could have reasonably been accepted to have been disrespectful or demeaning. There are all sorts of colloquialisms in common usage in Northern Ireland which can be regarded as referring to age or gender, eg ‘cub’, ‘cuttie’ or ‘wain’. They form part of normal speech.

83. The tribunal having heard the third-named respondent give evidence and having observed his manner of speech, do not believe that he had intended any disrespect in the use of the common phrase ‘wee girl’ or indeed, ‘wee boy’. It does not believe that anyone could reasonably have taken offence at such terms in the context in which they had been used. They had been no more than ordinary colloquialisms in a normal pattern of speech, particularly in Belfast.

84. The alleged use of the term ‘the child’ was not supported by any other evidence and was denied by the third-named respondent. The tribunal concludes, on the balance of probabilities, that was not used as alleged, or at all, by the third-named respondent.

85. The third-named respondent is a dyslexic and has a problem remembering names. He also states that he would shout ‘service’ 90% of the time and that it would be directed towards service staff in general. He did not know who in particular would respond to each request for attention. On a balance of probabilities this seems to be more likely than not. The term ‘service’ was clearly in common usage and was directed by the third-named respondent and indeed by the second-named respondent towards a range of staff. They did not always identify who was available on the floor. It seems that the claimant had been quick to take offence when it had been shouted in her direction.

86. However, it also seems clear that the third-named respondent did not like the claimant and that he had been frustrated by her challenging behaviour. This is likely to have caused him to have been dismissive towards her on occasions. However, there is absolutely no evidence that it had had anything to do with age and gender.

87. The claimant alleged a ‘barrage of abuse’ from the second-named respondent for ‘disobeying his authority’. After hearing the evidence the tribunal concludes, on the balance of probabilities, that no such ‘barrage of abuse’ occurred to the extent alleged and also concludes the phraseology used by the claimant indicates the reality, ie that where there had been criticism by the second-named respondent it had been in relation to her ‘disobeying his authority’. She clearly had been reluctant to accept instruction or guidance.

88. The claimant alleged that around November 2014 the second-named respondent had constantly made personal comments about her weight and about her then boyfriend. Insofar as the allegation in relation to comments about weight is concerned, it seems clear from the evidence that comments had been made by both the claimant and the second-named respondent about each other’s weight. The second-named respondent had been on periodic diets and the claimant appeared to be sensitive about her own weight. It does not appear to be the case that the second-named respondent had directed any particular remarks in the claimant’s direction that had not been reciprocated by the claimant. In relation to the alleged comments about the claimant’s then boyfriend, it would appear more likely than not, having considered the evidence of Ms Rebecca Robb and others, that such discussion did take place and had been in the form of teasing and winding up the claimant.

89. The issue for this tribunal to consider is whether or not there is a prima facie case that this had had anything to do with the claimant’s age and gender. The tribunal is content that there is no evidence pointing in that direction. The claimant has failed to make such a prima facie case. There is no evidence that any remarks or comments made by the second-named respondent had anything to do with a combination of age and gender.

90. The claimant complained that when she was put on ‘the pass’ she had been subject to adverse treatment from the third-named respondent who would have ‘aggressively barked orders’ at her. She alleged that the third-named respondent ‘constantly shouted at me to get food to the tables’. The claimant alleged that the third-named respondent ‘did not behave in this way with anyone else on the pass’.

91. The ‘pass’ was the serving counter at the end of the kitchen where it joined the restaurant. There was shelving above that counter. The chefs, including the third-named respondent, would shout for ‘service’ when orders were ready and would liaise with service staff to ensure that orders were prepared and delivered in the correct order. The tribunal has seen photographs of this area and it is clear that the view which either the chef or the member of serving staff would have had of each of other would have been significantly obscured and obstructed by the shelving and by items stacked on that shelving. It is also clear that there would have been significant noise and activity which would have made communication difficult and probably on occasions extremely difficult. It is also clear to the tribunal, having heard the evidence, that the third-named respondent and indeed the second-named respondent shouted frequently to a range of staff and not just towards the claimant. The claimant alleges that she had been treated more severely than others. That is supported by the witnesses called on her behalf. The tribunal is prepared to accept, on balance, that this had been the case. However the tribunal concludes that this in fact had been due, not to the claimant’s age and gender, of which the second and third-named respondents were supposed to have suddenly become aware after February 2013, but because of her attitude and her lack of co-operation as perceived by the second and third-named respondents. The claimant herself in her witness statement states that the third-named respondent ‘constantly accused me of being cheeky and talking back’ and that the second-named respondent had accused her of ‘talking back to Brian’. She also alleged that the second-named respondent had told her; ‘I needed to stop talking back’.

92. The claimant’s allegations about her treatment by the third-named respondent, principally at the ‘pass’ were inconsistent and confused. She alleged in her witness statement that he bawled orders at her and that ‘he would tell me to hurry up and lift the food even though there was no one to help’. She stated:-

“Brian did not behave this way with anyone else on the pass.”

That can only mean that she had been singled out for particular treatment and that she had not been treated badly together with other young employees, other female employees, or as she clarified in the course of the hearing, other young female employees.

Later in her statement, and in relation to the same type of behaviour, she stated:-

“Brian did not speak to other older and/or male members of staff in this way ... .”

That is not consistent with her earlier statement or indeed with her evidence to the tribunal. That suggests that she had been treated badly because of age and/or gender and not treated uniquely compared with all other employees of whatever age or gender. It is also difficult to reconcile with her clear evidence to the tribunal that she had been treated badly because of a combination of her age and gender but not because of her age or, separately, because of her gender.

93. The claimant also alleged that the third-named respondent had ‘often called me stupid”’ That allegation appears to be unsupported by other witnesses. In particular the witnesses called by the claimant do not support that allegation. If she had indeed been called ‘stupid’ frequently, someone would have remembered. It would have been included in a witness statement (other than the claimant’s) or in Ms Leah Robb’s letter in support of the claimant’s grievance or in the notes of the meeting between Ms Rebecca Robb and Mr Alan Reid.

94. The claimant complained of what she regarded as the second-named respondent’s ‘wild mood swings’ and made a particularly serious allegation in relation to the cause of such mood swings. That allegation was not only serious; it was entirely unsupported by any evidence and appears to have been no more than an exercise in mudslinging and an exercise in recycling gossip. It is disturbing that the claimant felt able to make such an unsupported allegation in support of her claim.

95. The claimant further alleged that the third-named respondent had by the end of 2014 cut her off completely and was refusing to speak to her directly in relation to work, including in relation to customer allergies. According to the claimant, that would have occurred where a customer had declared an allergy and had asked if the particular substance was contained in a dish. The tribunal has listened carefully to the evidence of the claimant and indeed the evidence of the third-named respondent in relation to this matter. It seems totally unlikely that a professional head chef in such circumstances would have refused to discuss a customer’s allergy as alleged by the claimant. Such behaviour would have put the health of a customer at risk and would have jeopardised the entire business. It would not just have been simply stupid or rude; it would have been breathtakingly negligent and it would have been instantly identified by the restaurant manager and indeed by the restaurant owner. It would have put the individual and indeed the first-named respondent at risk of criminal charges including manslaughter. Again this seems to have been totally untrue and again no more than an exercise in mudslinging on the claimant’s part.

96. The claimant further alleged that Sebastian Baronowski, the bar man, had called her a ‘useless c***’ while forcibly ‘pushing me in the back’. The claimant records this in her evidence as one incident when it seems clear from her allegedly contemporaneous handwritten notes that she was at that point alleging two incidents. She also accepts that she did not complain to either the second-named respondent as restaurant manager, or to Mr Reid as the owner of the restaurant. Given that it is clear that the claimant on her own evidence and on the evidence of other witnesses was very willing to ‘stand up for myself’ and very willing to pursue complaints, it is inconceivable, whether this is alleged to have been one incident, or two incidents conflated into one, that this ever happened as alleged by the claimant. She would not have tolerated such behaviour without complaint. No one would have done so. Furthermore, she has stated that her female colleagues effectively told her to forget about it and to continue offering Mr Baronowski a lift home at the end of her shift. That clearly is unlikely to have happened. On balance, therefore the tribunal concludes that this evidence is false and again designed to build a case of alleged discrimination.

97. The claimant alleged that another member of service staff who occasionally acted up as a duty manager had acted rudely and aggressively towards her. She alleged that on a particular evening in February 2015 Mr McCalmont had criticised her for testing a new wine that they were adding to the wine list. She alleged that she had been picked on in that regard. She alleged that Mr McCalmont and both Rebecca and Leah Robb had also tested the wine but had not been criticised. Rebecca Robb had not been on that shift. Leah Robb did not, in her evidence, say she had been treated differently. The claimant alleged that her section, for which she was responsible, had been ‘under control’ and that there had been only two tables which were waiting for dessert and had been attended to. The tribunal has listened to the claimant’s evidence in this regard and has also listened carefully to that of Mr McCalmont. Mr McCalmont was very convincing when he outlined what he remembered of that particular evening. He was clear that he had grown frustrated with the claimant’s absence from the restaurant floor and that he had had to clear one of the claimant’s tables and to hand out dessert menus to another. He was equally clear that there still had been five tables with customers present within the claimant’s section and that she had absented herself to the bar area where he had found her with a glass of wine. The claimant insists that she was only sipping the wine to test it. It does not seem to matter in relation to this case whether the claimant was sipping a miniscule amount of wine or taking an entire glass full. This had been done during her working hours and on the balance of probabilities Mr McCalmont had been justified in concluding that he effectively had been left to do her work. It is clear and indeed not in dispute between Mr McCalmont and the claimant, that when he had asked her to return to the restaurant floor she did not initially do so, and then eventually followed him out onto the restaurant floor criticising him loudly within the hearing of customers within the restaurant.

98. The claimant did eventually accept that she had acted inappropriately in this matter by continuing to criticise her manager in front of customers. That belated acceptance appears nowhere in her witness statement. It had to be forced out of her in cross-examination. This appears to be another example where the claimant demonstrated a clear attitude problem and a dislike of being told what to do by a manager or by a person working as a manager. The tribunal concludes that Mr McCalmont had not done anything wrong and that the claimant’s reaction to this incident is telling.

99. The claimant also stated in her evidence that she had been accused of trying to ‘fiddle’ the tips to her advantage. However it is clear that there never had been any disciplinary process and that the issue arose from a change in practice applicable in the restaurant and in part of the restaurant known as the Shu Bar in relation to the division of tips between the different staff. The claimant appears to be unable to see this as simply a change in practice of which she may not have been fully aware. She regarded it has an attack in relation to both her age and gender. There is absolutely no evidence to support this allegation.

100. Again the claimant complained, in particular, that in July 2014 the second-named respondent had accused her of putting the bottle of wine away to take home. It seems clear that what actually happened on this evening was that a customer had complained to the second-named respondent that he had sent a bottle of wine back as being ‘corked’. The claimant, who was his waitress, had, in his sight and within plain view of the restaurant, tested the wine at the bar. She had also told him that it was difficult to tell with this particular wine whether in fact in had been ‘corked’. The customer had been offended by this and had asked the second-named respondent whether the waitress (the claimant) had not believed him. It is clear that in this particular restaurant or perhaps in this type of restaurant, wine is sent back on a fairly regular basis for being ‘corked’. The customer’s word is always taken in these matters and the second-named respondent simply explained that position to the claimant. There is absolutely no evidence that the claimant had ever been accused of putting the wine away to take home for her own use. There had never been any disciplinary proceedings and this again seems to be an incident where a relatively normal event has been interpreted in the claimant’s eyes as something more sinister. There is again absolutely no evidence that any of this had anything to do with age or gender.

101. The claimant complains that the third-named respondent had singled her out and had ‘constantly questioned’ her about the use of Vaseline as lip balm or the taking of migraine tablets at work. It seems clear that there would have been some occasions on which the third-named respondent would have reminded staff, including the claimant, that lip balm should not be applied in view of the customers. Given that staff would be handling food, that does not seem unreasonable. Again there is no evidence of age or gender discrimination in any of this and, apart from the claimant’s assertion, no evidence that the claimant had been ‘constantly’ questioned about using lip balm or taking migraine tablets near the restaurant floor.

102. The claimant alleged that the third-named respondent has referred to her as the ‘weak link in the team’. She alleged that Rebecca Robb had overheard this comment. Ms Rebecca Robb had given a statement to Mr Reid in relation to the claimant’s first grievance. That particular comment is not supported in that witness statement and indeed was not confirmed by the oral evidence of Ms Rebecca Robb.

103. In any event, it seems clear that there had been friction between the claimant and both the second and third-named respondents. However there is no prima facie evidence that this friction had been in any way due to a combination of age and gender. It seems clear to this tribunal that it had been due to a combination of a poor working environment, poor employment practices and to an extent by the claimant’s own attitude problem. To put it bluntly, there should have been less shouting and fewer tantrums on the part of the second-named respondent, the third-named respondent and the claimant.

104. One other incident relied on by the claimant occurred in or around the start of October 2014. The claimant had arranged the booking of a table at a wine tasting event for her two parents. She stated that she had asked for a larger table which would ordinarily seat between four and six people. She stated to the tribunal that her father suffered from arthritis and required the extra room. It is clear from the evidence that the claimant did not make the booking herself but that she asked Rebecca Robb to make the booking on her behalf. Ms Robb did not state in her evidence that she had specified in that booking that the claimant’s father had arthritis or that the specific table had been required for disability reasons. Ms Robb also candidly stated that she may not even have specified that the particular table was a specific request. After carefully considering the evidence of the claimant, Ms Robb and of the second-named respondent, the tribunal concludes that the second-named respondent had been the restaurant manager in charge on that particular day. The restaurant had been almost fully booked for this particular wine tasting event. Only one two-seater table had been left unbooked. He received a telephone call from another party seeking a table of four for this event. He checked the bookings and saw that two individuals, ie the claimant’s parents, were booked at a table that would normally sit four to six people. He moved the claimant’s parents on to the vacant two seater table and allocated the larger table to the group who were wishing to book for four people. It seems to the tribunal highly improbable that the second-named respondent would have made a decision to disregard any notification of a disability or even to disregard a special request without first checking with the claimant. It therefore seems much more probable than not, that he acted in relation to what he had regarded as simply a normal booking.

105. In any event, the claimant, when she came on duty, saw that her parents’ booking had been moved and argued with the second-named respondent. It is clear that the claimant had been upset during this incident. The claimant and Ms Rebecca Robb are both clear that she had been ‘tearful’. Both are clear that voices had been raised. The second-named respondent states that the claimant had tackled him about the booking being altered and had called him a ‘liar’. The tribunal concludes that it is much more likely than not that this actually was said by the claimant in the heat of the moment. It is equally clear and not in dispute that the second-named respondent had also lost also his temper and had told her that ‘if you don’t like it you know where the door is etc’.

106. The tribunal concludes that this issue had nothing at all to do with age and gender. It started because of a simple misunderstanding and escalated because of the claimant’s attitude to the second-named respondent and to management generally. The second-named respondent unwisely and wrongly had responded in kind.

107. The claimant also alleged in evidence that the third-named respondent had been to ‘anger management’ classes. That was entirely wrong and appears to have been yet another careless allegation made without any supporting evidence. When the tribunal considers this allegation, the allegation about the reason for the second-named respondent’s alleged mood swings and the allegation about Mr Baronowski, it is clear that the claimant was prepared to say anything, whether supported by any evidence or not, to advance her claim.

108. A further issue, and perhaps a further illustration of minor issues exploding out of control, occurred on 31 October 2014. The claimant had been working during a lunch shift and brought back plates to the kitchen. One of those plates contained a half finished dessert. That had been from a regulars’ table and the third-named respondent had asked whether there had been anything wrong with the dessert. That seems to the tribunal to have been a normal enquiry. The claimant alleges that she answered that query and that the third-named respondent then asked the query again in quick succession two more times. She alleges that on each occasion she answered and that on the third occasion she asked words to the effect of ‘am I supposed to tell them they are not allowed to be full?’

109. The evidence from the third-named respondent is that the claimant had failed to respond to his first question and to his second question and that when he asked it for a third time, in some frustration, she had screamed at him as described.

110. It seems to the tribunal highly improbable that the third-named respondent would have asked the same question three times if it had already been answered on the first or even on the second occasion. It seems much more likely than not that the claimant either did not answer, or that her answer was inaudible in the noise and confusion of the kitchen. In any event, her response to the head chef, in front of all the kitchen staff, had been inappropriate and wrong.

111. The third-named respondent reported the issue concerning the dessert to the second-named respondent who spoke to the claimant. He asked her to stop answering back. The claimant became upset and went to speak to Mr Reid. This was the first occasion on which she spoke to Mr Reid despite having been employed for a lengthy period. Mr Reid had an office in the same building and had been accessible to staff.

112. It is clear that during the meeting between the claimant and Mr Reid on 31 October 2014 the claimant had been angry and emotional but that she had also been assertive. After discussion about possible meetings with the second and third-named respondent she asked for a further meeting with Mr Reid.

113. That meeting took place on 7 November 2014. Before that meeting Mr Reid had contacted the Labour Relations Agency and had sought advice in relation to the handling of this matter. He typed up key points that had been discussed with the Labour Relations Agency. One of those points concerned an indication that this complaint was to be treated as an informal matter.

114. The meeting was attended by Ms Mairead Donnelly, the accountant who acted as a note taker. Both Mr Reid and Ms Donnelly were clear that the question whether the complaint was to be dealt with as an informal matter had been put to the claimant on Labour Relations Agency advice. It had been agreed by the claimant. The claimant denies that she had agreed that the matter should be dealt with informally. However she seems remarkably unclear about what she did agree. She repeated several times in evidence that she had wanted it dealt with ‘in-house’. Dealing with a matter ‘in-house’ does not mean dealing with the matter ‘formally’. It seems more likely than not that the claimant had agreed in some manner to the matter being dealt with on an informal basis. The claimant submitted a written letter of complaint at the end of that meeting. However the submission of a letter does not, as suggested on behalf of the claimant, automatically render that a formal complaint. It was simply recording oral complaints in written form.

The tribunal therefore concludes that the first grievance had been dealt with informally by agreement. It does not therefore raise the possibility of an uplift for failure to comply with a formal grievance procedure.

115. After that meeting on 7 November 2014, Mr Reid separately met the second and third-named respondents, Mr McCalmont and Ms Rebecca Robb. He did not speak to Ms Leah Robb but he did consider her letter which she had submitted in support of the claimant’s grievance. He did not speak to Mr Baronowski or to Stephanie Grant or indeed to other staff.

116. The first-named respondent ran a significant business with several staff. It had been in operation for over 10 years. Nevertheless, it seemed to have had a particularly amateurish approach to employee relations. The claimant had never been given a statutory statement of terms and conditions. Neither had other staff. That has been a legal requirement since 2003. There was no written grievance procedure. There still is not any written grievance procedure.

117. It is clear that the claimant had difficulty accepting ordinary management instructions. That had not been addressed promptly by management in the early stages of her employment. If it had been, the tribunal would not have had to listen to this saga for five days, the second and third-named respondents would not have become more and more frustrated with the claimant and the claimant would, in all probability, have still been in employment.

118. On top of the generally amateurish approach to management, the second and third-named respondents, and staff generally, seem to have believed that the catering industry was in some way a uniquely pressurised environment where a combination of perceived stress and artistic temperament excused bad behaviour. Such behaviour seems to have been regarded as the norm. It is clear from the evidence of, inter alia, Ms Rebecca Robb that this behaviour is commonplace within the catering industry and that it is not restricted to Shu. The preparation and service of food, whether at McDonalds or at Shu, is not uniquely pressurised. It is no more pressurised than working as a nurse in an NHS ward. It is no more pressurised than engineering an aircraft part to precise tolerances in Bombardier. It is no more pressurised than watching for shoplifters in Poundstretcher. Such employments do not tolerate shouting, screaming and tantrums in the workplace. Neither should the catering industry. Gordon Ramsay has a lot to answer for.

119. Serious allegations had been made by the claimant and had been supported in particular by Ms Leah Robb in her letter to Mr Reid. Even when Mr Reid had been justified in regarding this as an informal grievance, or an informal complaint, his investigation into this matter was extremely limited. In particular, he should have investigated the complaint in relation to Mr Baronowski and should have interviewed him and any potential witnesses to both the alleged incident and to the aftermath of the alleged incident. He should have interviewed many more of the service staff to get a more rounded picture of what was going on in Shu. It was not sufficient for Mr Reid to say as he said to this tribunal that he was satisfied that there had been inappropriate conduct by management and to leave it at that.

120. After that investigation Mr Reid spoke to the second and third-named respondents and told them to avoid ‘tit for tat’ confrontations and to make her feel a ‘valued member of staff’. Even though it seems clear that Mr Reid had formed the conclusion that both had acted inappropriately, but not on any discriminatory ground, he did not consider and he did not institute any informal or formal disciplinary action against either individual. He did not issue any informal warnings. Furthermore, although he clearly considered that the claimant had contributed significantly to her own problems in the workplace by her attitude, he did not consider and did not institute disciplinary action against her. He did not give her an informal warning.

121. After hearing the evidence of all the witnesses and after considering the papers, the tribunal’s conclusion is that each of those three individuals, the second and third-named respondents and the claimant, had all been at fault in this matter and that each should have been spoken to by Mr Reid, either formally or informally in the context of disciplinary action. This had not been a series of discriminatory actions. It had been inappropriate behaviour by each of those three individuals in what could be fairly described as a poor working environment where such behaviour appeared to be accepted as normal. It had been for Mr Reid as the owner of the business to call a halt to this matter and not to adopt what he clearly regarded as conciliatory action and not to adopt the mantra ‘least said, soonest mended’.

122. Crucially, even though Mr Reid gave some advice to the second and third-named respondents and even though he had asked them regularly thereafter how things were going with the claimant, he did not speak at all to the claimant about the conclusion of her first grievance. He did not at any stage advise her that some of her complaints had been upheld and he did not at any stage advise her that, in his view, she had caused much of the difficulty herself. He did not notify her of the determination of the grievance and he did not give her any opportunity to improve her conduct. However, he did not victimise her because of her complaint.

123. Following the first grievance, the claimant complains that the second-named respondent praised her performance and that his attitude to her was ‘over the top’. She stated that she found this attitude fake, disingenuous and an extreme change. It might have been better if Mr Reid had explained what had happened so that the claimant could have understood what was going on. That said, it seems odd that the claimant appears now to be genuinely aggrieved at having been praised.

124. The claimant also complained that the third-named respondent treated her with ‘complete contempt’ thereafter. The tribunal concludes, on the balance of probabilities, that he disliked the claimant;’ he found her attitude frustrating and had resented her complaint. However, the tribunal believes, on the balance of probabilities, that he took Mr Reid’s advice to heart and that he avoided unnecessary contact with the claimant. He did not victimise the claimant because of her complaint.

125. The claimant complained that after Christmas 2014 the respondent employed another full-time member of waiting staff (Alan Stanfield) for her position. This was alleged to be an act of victimisation. That was not the case. Mr Stanfield was recruited not as a replacement or substitute for the claimant but had been recruited on 21 November 2014 to replace another member of staff who had left on 18 November 2014. It had been unconnected to her grievance, or to her age and gender. That should and would have been obvious to the claimant; yet it was still presented to this tribunal as an act of unlawful victimisation.

126. The claimant complained that in February/March 2015 she was placed under pressure and that shifts were cancelled. However it is clear from the records of the respondent that several individuals had their shifts cancelled and it does not appear, and it certainly was not argued in the tribunal, that her shifts were cancelled disproportionately. It seems clear from the evidence that this had been a quiet time and there had been a general downturn in business. Even though the claimant had been working as a student casual in the restaurant, the respondent did not decide to cut her shifts entirely to safeguard the employment and earnings of other perhaps more permanent members of staff. They instead applied shift reductions fairly evenly. This does not support the claimant’s allegation that following her first grievance there had been a campaign to drive her out of employment.

127. The claimant lodged a second grievance on 23 March 2015. The tribunal was not drawn to the actual terms of the grievance. It does not appear in the papers.

128. Mr Reid offered LRA mediation or an independent investigation in relation to the second grievance. The claimant refused to accept that. She decided, following advice from the Equality Commission, to lodge a complaint in the tribunal. That was the first of the two tribunal claims alleging unlawful discrimination. The second followed her resignation and also alleged constructive unfair dismissal.

129. It is clear that at this point the claimant had been left in a position where she did not know what if anything had happened to her first grievance and that she had concluded, not unreasonably, that nothing had in fact occurred. This is a situation which could have been easily avoided if Mr Reid had decided to speak to her in the same way as he had spoken regularly to the second and third named respondents. His efforts to ‘avoid throwing fat on the fire’ have backfired spectacularly. The tribunal concludes that in these circumstances the claimant had been entitled to view an offer of mediation with some suspicion. Mr Reid, even at the stage of the second grievance, could have tried to explain his conclusions in relation to the first grievance; he did not do so. He could have made decisions on disciplinary action for the three individuals involved. He did not do so.

That said, given the obvious efforts taken by Mr Reid to progress the second grievance, there are no grounds for any uplift on compensation.

130. The claimant decided to hand in her notice on 27 June 2015. The letter of resignation gave one week’s notice and stated:-

“I feel that I have learnt a lot over the years in food but need to move on to a new challenge and a fresh start.”

The references to a ‘new challenge’ and to a ‘fresh start’ and ‘to moving on’ are unusual in a letter of resignation where an employee alleges that she has been driven from employment. Those references strongly suggest that alternative employment had been obtained before the resignation. The claimant’s witness statement suggested briefly that she had tried to find alternative employment after she left employment with the first-named respondent. The tribunal was not drawn to any documentary evidence supporting this. When asked, in evidence, the claimant stated that she had sent CVs to several restaurants on the evening of Wednesday 24 June 2015 after deciding she could no longer work in Shu, three days before she handed in her notice on Saturday 27 June 2015. She stated she heard promptly back from her next employer, Ox Restaurant, on Saturday 27 June 2015 by telephone. She was asked to attend Ox for an interview and was offered a post on 29 June 2015. Ox was closed over the 12^th break and she started on 21 July 2015.

131. The tribunal would have expected to be drawn to some documentary or other evidence of this remarkably quick sequence of events. The tribunal would also have expected this sequence of events to have been set out in some detail in the claimant’s witness statement. It was not. It was glossed over. The tribunal notes the claimant’s propensity to mis-state evidence to advance her claim. The tribunal concludes, on the balance of probabilities, that the claimant had secured employment in Ox before she decided to leave Shu. If she had not done so, her letter of resignation would not have referred to ‘a new start’. If she had not done so, the efforts she made, and the timing of those efforts, to find alternative employment would have been set out in detail.

132. She worked in the Ox Restaurant until 5 September 2015. She stated that the job had started well but that it had deteriorated and that she had been told by a manager that they had no place for her. She alleged that this had been due to contact from the respondents. However, apart from the claimant’s unsupported assertion, there is absolutely no evidence of that. The tribunal concludes, on the balance of probabilities, that the respondents had no part in the termination of the claimant’s employment in Ox.

133. The claimant applied for a broad range of jobs following September 2015. She used three methods:-

(i) Applications to HR Portals which had simply asked for her name and contact details. There had been no acknowledgement in these cases and these applications had created no records.

(ii) “’Proper’ applications to agencies such as Northern Ireland Job-Finder and Recruitment Consultants which had created records which were produced to the respondents.

(iii) Applications where agencies such as Northern Ireland Job-Finder re-directed the claimant to HR Portals on their website where again no records had been created.

134. In September and October 2015, after she had left Ox Restaurant on 9 September 2015, there were 30 records of applications produced by the claimant. Only one record relates to an application lodged during the month of September and that related for an application for Christmas employment in the House of Fraser.

135. There were no records of any job applications at all, apart from that one job application to the House of Fraser, during September 2015. That seems very odd. By that stage the claimant had received Notices for Additional Information and Discovery dated 1 September 2015 and a Case Management Discussion had been held on 15 September 2015. The claimant had received advice from the Equality Commission and was well educated. She knew the importance of maintaining records in relation to a search for alternative employment.

136. Furthermore, of the 30 records relating to 30 job applications, 26 were acknowledgements dated 7 October 2015. That suggests that there had been a cluster of 26 applications immediately before that date. When the claimant was challenged on this in cross-examination, her evidence was totally unconvincing. She was evasive. She had to finally accept that she had checked her e-mails for all records relating to a job search. She accepted that she had not deleted any such records. She could not satisfactory explain why job applications in the middle category (above) had all been so concentrated in time as to produce 26 notifications on 7 October 2015. She could not satisfactory explain why there were no such acknowledgements (apart from one) in September or why there had been only three on any other date in October. She could produce no explanation for this sudden spike in applications. The tribunal concludes that this had been an attempt on the claimant’s part to generate a history of a job search where she felt that no such history of a consistent job search following 9 September existed.

137. The claimant also registered with Recruitment Agencies, ie Grafton Recruitment and Bond Recruitment. She was placed by Bond Recruitment in an administrative post in the Electoral Office which ran from mid-October 2015 until February 2016. No loss is claimed after February 2016.

138. The claimant also started part-time employment on 12 November 2015 in a wine wholesaler.

Decision

Unlawful discrimination

139. It is for the claimant to point to a prima facie case of unlawful discrimination. She has signally failed to do so.

140. The evidence produced by the claimant in relation to the alleged discriminatory motive is all over the place. The wording of the first claim form, prepared by the claimant with the assistance of the Equality Commission, suggested that she had been singled out for worse treatment than any other employee. It then suggested that she had suffered from adverse treatment because of either or both age and gender. In oral evidence to the tribunal, the claimant then asserted that she suffered from adverse treatment because of a particular combination of both age and gender (but not on either ground separately). Her witnesses each had their own ideas; gender, gender and nationality, and age were put forward as the discriminatory motive. No one seemed to agree. It was a case of ‘any motive will do’.

141. The alleged motive put forward by the claimant is in any event highly unlikely. The second and third-named respondents could not have failed to notice the claimant’s age and gender when had been first appointed to her position in the restaurant and when she had been subsequently promoted and trained. They could not have failed to notice her age and gender until, for some unexplained reason, the penny finally dropped in February 2013. The claimant accepts that she was treated well in the period up to February 2013 and that is inconsistent with her current allegation that the second and third-named respondents had a settled animus against young female employees. It also seems highly unlikely that the claimant’s age and gender only became a problem in February 2013 because she was slightly older than she had been in January 2013.

142. Furthermore, it would require an unusually specialised and particular type of bigot to focus his animus on young women, but not on slightly older women, not on slightly younger women, not on young men, or on older men. It would have been a remarkable coincidence if both the restaurant manager and the head chef were of that particular specialised mindset and if both had somehow failed to notice the claimant’s age and gender for one full year between February 2012 and February 2013 when their discriminatory tendencies were somehow activated.

143. Furthermore, the claimant in first claim form alleged ‘blatant discrimination’ when referring to a comparison between Ms Grant, who was also a young female member of staff, and herself. When cross-examined on this issue, she alleged for the first time, and entirely unconvincingly, that Ms Grant had been treated differently than the claimant simply because Ms Grant’s family had been regular customers in the restaurant. That explanation, which appears to have occurred to the claimant while in the witness chair, does not explain why the comparison was presented in a claim form as ‘blatant discrimination’, ie as a matter for this tribunal.

144. The claimant appeared to be anxious to raise anything that might be considered a discriminatory motive for adverse treatment. She alleged at one point, in her cross-examination, that her affluent background had been a factor. She then alleged that it had been, in part, her Protestant community background. Neither allegation had featured in her two claim forms.

145. The claimant’s evidence was unreliable. It was marred by her regrettable tendency to raise unsupported allegations. In particular, the claimant alleged, without any supporting evidence whatsoever, that the third-named respondent had been sent to anger management classes. She alleged that the second-named respondent had suffered from wild mood swings because of a particular reason; again making a serious allegation without any supporting evidence. She alleged that the barman had used a particularly offensive swear word and had pushed her forcibly in her back. That allegation is simply incapable of belief for the reasons set out earlier in this decision.

146. The tribunal concludes that, while the claimant had been subject to ‘inappropriate behaviour’, to use Mr Reid’s phrase, and while she had given the same in return, there is absolutely no evidence that any of this had been due in any way to either her age, gender or to any combination of age and gender. The evidence of all the parties, including the claimant’s own evidence, and the evidence advanced on her behalf, points to one conclusion; the claimant had a habit of answering back and of querying management instructions or criticism. She did so whether the instructions or criticisms came from the second-named respondent, the third-named respondent or indeed from another member of staff acting as a duty manager. It was that tendency to answer back, combined with the generally poor working environment, that was the reason for her difficulties with the second-named respondent and the third-named respondent. Both had grown frustrated and annoyed with her attitude.

147. The incidents alleged by the claimant, taken individually or culminatively do not raise a prima facie case of unlawful discrimination.

Unlawful victimisation

148. Again it is for the claimant to point to a prima facie case of unlawful victimisation. She has again failed to do so.

149. Her first grievance had been raised with Mr Reid on 31 October 2014. It then led to a meeting between Mr Reid and the claimant on 7 November 2014. A written complaint was handed in on that date to supplement the oral complaint. The issue for the tribunal to determine in relation to the claim of unlawful victimisation is whether any adverse treatment after that date had been connected with that grievance, or indeed with the second grievance or with the tribunal claims.

150. The claimant’s statement over 12 typewritten pages, which comprised her evidence-in-chief, did not set out all of the alleged incidents in clear date order, so that the tribunal could easily determine which alleged incidents occurred after the first grievance and therefore which alleged incidents may possibly be relevant to a claim of unlawful victimisation. For example, on the second page of her statement, the claimant gave evidence in relation to November 2014 immediately before evidence in relation to the summer of 2013. Other incidents referred to in the statement were not given a date, eg the alleged abuse by the barman. At one point, on the fifth page of the statement, she appeared to be setting out events after Christmas 2014 but then immediately referred to June 2014 and then to October in an unspecified year. However, it seems to be the case that the evidence-in-chief given by the claimant from the 28^th paragraph on page 7 of the statement was meant to relate to an allegation of victimisation following her first grievance.

151. The first specific alleged incident of victimisation was the hiring, by the first-named respondent, of Alan Stanfield. The tribunal is content that this appointment had nothing at all to do with her grievance or indeed with her age or gender. It had been a straightforward replacement of another member of staff who had just left.

152. The next alleged incident of victimisation was that she had been given work in February 2015 which would have produced fewer tips. The evidence in relation to tips is not complete. It relates solely to credit card tips which appeared on her wage slips. There is no record of any sort in relation to cash tips. However, in any event, her credit card tips, when compared with the month of February 2014 reduced in February 2015 by a relatively small amount, ie £64.38. Her tips had also reduced in the preceding month, when compared with January 2014, by £48.78 but no complaint of victimisation has been made about that. In any event, in relation to both months, her hours had reduced significantly. It is also clear that tips and indeed hours had reduced in March and April but that her tips had not reduced in May or June 2015 even after hours had been reduced.

There is no evidence that she had been allocated to particular tables in order to reduce her tips because of her grievance. Tips are unpredictable in any event and if the claimant’s allegations were really correct, there is no explanation for no reduction in tips being apparent in May and June 2015 even though hours had been reduced in those two months.

153. The claimant alleged that her hours had been reduced following her grievance as an act of victimisation. That was not supported by the evidence before the tribunal. While her hours had been reduced, the hours of other employees had similarly been reduced. The unchallenged evidence of the respondents was that there had been a general turndown in business which had led to a general reduction in hours. It is particularly notable that the claimant had not been guaranteed any particular hours or any particular level of hours. It would have been open to the first-named respondent to simply reduce her hours to zero to maintain the employment of others. It did not do so. She seems to have been treated on a par with others. There is no evidence at all of any detrimental treatment.

154. She then alleged that she had been ‘undermined’ in relation to wine courses that she had undertaken. It is unclear what this allegation means. In any event, there was no evidence of any such detrimental treatment.

155. The second grievance followed on 24 March 2015. The claimant had not been kept informed of the progress of the first grievance. That first grievance had not been properly investigated or determined. Mr Reid seemed to just want to keep the peace and to be conciliatory. However, none of this was an act of victimisation on the part of any respondent as a result of the claimant’s grievance. It simply reflected an amateurish approach and possibly a fear of conflict.

156. The claimant complained at various parts, in the latter part of her statement, about adverse treatment from the third-named respondent. It seems clear that she is alleging that the third-named respondent continued to act as he had acted before the grievance. If her allegation is simply that the third-named respondent did not change his behaviour after the grievance, that does not equate to victimisation. It suggests the opposite.

157. She complained that in a particular incident the second-named respondent had ‘aggressively’ accosted her about eating chocolate while on duty. He apparently had asked her ‘are you on service?’. That seems to be an ordinary interaction between a manager and a member of service staff and cannot be reasonably be elevated to an act of victimisation.

158. She alleges that she had been given tables on a particular date in May 2015 where she would earn the least tips. She maintained that in evidence. However, the documents produced on her behalf in relation to remedy make it plain that her credit card tips (and again we are not told anything about the cash tips) did not reduce for the month of May 2015 when compared with May 2014, even though the hours she worked during that month had reduced. In short, there was absolutely no evidence of a reduction in tips and in fact the contrary seems apparent.

159. The claimant complains that on an unspecified date the second-named respondent had criticised her for not saying goodbye to a customer. Having heard the claimant being cross-examined and after listening to the cross-examination of the second-named respondent, it seems clear to the tribunal that the second-named respondent, as part of his supervisory duties, had reminded or had prompted the claimant to say goodbye to customers who were leaving the restaurant. That is part of his reasonable supervisory duties and cannot be elevated to an act of victimisation.

160. She complained that the second-named respondent on a particular date was constantly checking on her in relation to work in the bar. Checking on the claimant was part of his job. Again, prima facie evidence of detrimental treatment has not been established.

161. The conclusion of the tribunal therefore is that the claim of unlawful victimisation fails. It does not even get to the stage where the burden of proof would have shifted to the respondents.

Constructive unfair dismissal

162. To conclude that the claimant had been constructively and unfairly dismissed, the tribunal would have to include, on the balance of probabilities, that the first-named respondent, as the claimant’s employer, had repudiated the contract of employment by a fundamental breach of that contract. It would also have to conclude that the claimant had resigned because of that breach and not for any other reason. It would also have to conclude that she had not affirmed the breach in the contract through delay or by any other means.

163. In this case the employer had failed to properly respond to the claimant’s first grievance even though the employer, Mr Reid, had concluded that there had been inappropriate behaviour on the part of the second and third-named respondents in their management roles. The EAT stated in Blackburn v Aldi [UKEAT/0185/12] that:-

“Failure to adhere to a grievance procedure is capable of amounting to or contributing to such a breach. Whether in any particular case it does so is a matter for the Tribunal to assess. Breaches of grievance procedures, come in all shapes and size. On the one hand, it is not uncommon for grievance procedures to lay down quite short timetables. The fact that such a timetable is not met will not necessarily contribute to, still less amount to, a breach of the term of trust and confidence. On the other hand there may be a wholesale failure to respond to a grievance. It is not difficult to see that such a breach may amount to or attribute to a breach of the implied term of trust and confidence.”

164. As the Court of Appeal indicated in Malik v Bank of Credit & Commerce International SA [1998] AC 20, the conduct relied on by a claimant as constituting a fundamental breach of contract must ‘impinge on the relationship in a sense that, looked at objectively, it is likely to destroy or seriously damage the degree of trust and confidence the employee is reasonably entitled to have in his employer”.

165. In Waltham Forest v Omilaju [2004] EWCA Civ 1493, the Court of Appeal stated:-

“Many of the constructive dismissal cases which arise from the undermining of trust and confidence will involve the employee leaving in response to a course of conduct carried on over a period of time. The particular incident which causes the employee to leave may in itself be insufficient to justify his taking that action, but when viewed against a background of such incidents it may be considered sufficient by the Courts to warrant their treating the resignation as a constructive dismissal. It may be the ‘last straw’ which causes the employee to terminate a deteriorating relationship.”

166. As indicated above, the main difficulty faced by the tribunal in this case is that the evidence given on behalf of both sides in this matter has been either exaggerated, evasive or downright untruthful. With the exception of Ms Donnelly, Mr McCalmont and Mr Baranowski, the tribunal has not been impressed by the quality of the testimony.

167. It is unnecessary to go through each and every incident alleged by the claimant at this stage. Those have been dealt with above in the context of the findings of fact and in relation to the claims of unlawful discrimination and unlawful victimisation. That said, it is clear that there had been considerable friction between the claimant and the second and third-named respondents. As indicated above, that arose not because of any prohibited or discriminatory ground but because of the claimant’s attitude in answering back and in not accepting instructions. Management, ie the second-named respondent, the third-named respondent and Mr Reid failed, as they should have done, to address this situation early and to have corrected it in the interest of both the employee and the employer. They allowed it to continue and they allowed a working environment to exist where shouting and rows appear to have been commonplace and appear to have been accepted as the norm. It is simply not acceptable these days for a manager to state that he shouts at everybody and therefore, in effect, that he cannot see any problem.

168. The tribunal must give considerable weight to Mr Reid’s admission that he had concluded in response to the first grievance that the second and third-named respondents had behaved inappropriately towards the claimant. Equally, it must give considerable weight to the evidence, not just of Mr Reid but of the witnesses brought on behalf of the claimant and the evidence of the second and third-named respondents to the effect that the claimant brought a great deal of this on herself through her attitude to management.

169. The tribunal also must conclude that the amateurish approach adopted by the first-named respondent led to a situation where, in the absence of any written or structured procedure for dealing with a grievance or complaint, the first grievance, although an informal grievance, lodged by the claimant had not been dealt with appropriately. Crucially, she had not been told of the result, even when she proceeded to lodge a second grievance. Mr Reid accepted that his approach to this was to ‘not throw fat on the fire’ and to adopt a conciliatory approach. The tribunal cannot see how he had ever concluded that speaking to the second and third-named respondents, without speaking on an equal basis to the claimant, could ever have achieved that objective. The tribunal has concluded that the claimant had been perfectly entitled to conclude, and did conclude, that nothing had happened in relation to her first grievance over a period of some months and that the claimant had been entitled to conclude, and did conclude, that her second grievance would not be treated seriously. The offers of mediation and of the appointment of an ‘independent’ HR Consultant were not likely to impress anyone at that stage in proceedings. It also has to be remembered that the ‘independent’ HR Consultant proposed by Mr Reid would have been paid by Mr Reid and there would have to be some doubt as to the actual level of independence. As far as the possibility of mediation with the LRA was concerned, the claimant had been entitled to conclude, and did conclude, that such mediation would not have led anywhere and that the objective of the first-named respondent had been simply to safeguard the interest of the business and to retain the services of the second-named and third-named respondents.

170. While the tribunal has concluded that it is more likely than not that the claimant had already obtained some form of assurance of further employment in Ox before tendering her resignation, but that in itself is not fatal to a claim for constructive unfair dismissal.

171. The tribunal concludes that the claimant had been subjected to inappropriate management conduct throughout the latter stages of her employment (although she had contributed significantly to that conduct) and that that course of conduct had continued beyond the submission of her first grievance, albeit to a lesser extent. It seems clear that the third-named respondent, in particular, had made his dislike of the claimant obvious. While this inappropriate conduct had not been exacerbated by or related to her grievance, it had continued for some time.

172. The tribunal therefore concludes that the claimant had been constructively and unfairly dismissed in these circumstances. She had been subjected over a lengthy period to inappropriate management conduct. That had not resolved completely following her first grievance. Despite waiting for some weeks, Mr Reid had not informed her of his clear conclusion that there had been an inappropriate management conduct and had not taken the basic steps of warning the second and third-named respondents or the equally basic steps of warning the claimant. All of that, taken together, amounted to a fundamental breach of contract.

173. The tribunal concludes that she left her employment because of that fundamental breach of contract and for no other reason. While the tribunal concludes that the claimant had another job arranged at Ox, that does not alter the fact that the inappropriate management behaviour and the failure to deal with the first grievance were the reasons for her resignation. The tribunal also concludes that she did not delay unduly. She had been waiting for a result from her first grievance.

Constructive unfair dismissal compensation

174. This case presents a difficult task in assessing compensation. The basic award, subject to contributory conduct, is relatively simple. It is simply the application of a statutory formula. The compensatory award is more difficult. The compensatory award is purely an award to compensate an employee for the financial loss which flows directly from the dismissal. It should not be increased out of sympathy for the claimant or to express disapproval of the respondent - Lifeguard Assurance v Zadrozny [1987] IRLR 56. No compensation can be awarded under this heading for injury to feelings - Dunnachie v Kingston-upon-Hull City Council [2004] IRLR 727. The compensatory award therefore relates solely to financial loss.

175. A further complication in this case is that the claimant started employment in the Ox Restaurant shortly after her resignation and the tribunal had concluded, on the balance of probabilities, that she must have had that employment arranged or least promised before her resignation was submitted. In any event, she worked in that restaurant for about six weeks before leaving. Given that the compensatory award is restricted solely to financial loss which is consequent upon on constructive dismissal by the first-named respondent, a question then arises whether any loss from that second termination of employment can be properly attributed to the constructive dismissal. The Great Britain Court of Appeal stated in Aegon UK Corp Services Ltd v Roberts [2009] IRLR 1042:-

“The relevant loss is, however, only that which is attributable to the dismissal by the employer. When assessing future loss, the tribunal is sometimes faced, as in this case, with a situation where an employee has been employed in fresh employment and dismissed prior to the hearing. Where that is the position, it has to determine whether the original employer remains liable for the loss which continues after the second dismissal. Can the loss be attributable to the first dismissal or should the second employment be treated as having broken the chain of causation?”

In Dench v Flynn & Partners [1998] IRLR 653, the Great Britain Court of Appeal held that it does not necessarily follow that loss consequent upon an unfair dismissal must be deemed to have ceased once someone has obtained a permanent employment at the same or more favourable terms:-

“No doubt in many cases a loss consequent upon unfair dismissal will cease when an applicant gets employment of a permanent nature at an equivalent or higher level of salary or wage than the employee had enjoyed when dismissed. But to regard such an event as always and in all cases putting an end to the attribution of the loss to the termination of employment cannot lead in some cases to an award which is just and equitable.”

In that case the Court emphasised that it would be for the tribunal, as a tribunal of fact, to consider in any particular case whether the effect of the second employment was to break the chain of causation or not.

176. The recognised text book in this area, ‘Employment Tribunal Remedies’ by Korn & Sethi 4^th Edition states at Paragraph 6.38 that in unfair dismissal cases, ‘the NIRC said that compensation should be assessed under four headings’. It continues that the first of those headings should be:-

“Immediate loss of earnings - that is, the loss of earnings between the date of dismissal and the date of hearing.”

177. However the NIRC does not appear to have said that in terms in the relevant Norton Tool decision. The NIRC when considering the correct manner for assessing compensation in relation to the loss of employment did not say that the first element in such compensation should be the loss of wages up to the date of the hearing; whether that hearing is by an employment tribunal or by some other judicial body. The date of any such hearing is subject to considerable variation and is impacted upon by a range of matters such as the availability of parties, the availability of counsel, the availability of witnesses and the availability of listing time. In real terms there can on occasion be significant delays and equally cases can move exceptionally quickly on occasion. In the tribunal’s view, it is highly unlikely that the NIRC, or anyone else, ever intended that a significant element of compensation should be automatically determined by such a random event. The statutory basis for assessing compensation is to assess actual loss. It is not appropriate to assess a significant proportion of actual loss by fixing that proportion to the listing dates given to a particular case.

178. The NIRC separated the component parts of appropriate compensation into four headings:-

(a) immediate loss of wages;

(b) manner of dismissal;

(d) loss of protection in respect of unfair dismissal or dismissal by reason of redundancy.

In relation to the first category, ie ‘immediate loss of wages’, the NIRC was not, as appears to be suggested in the text book and in the claimant’s submission in the present case, suggesting that compensation should be awarded automatically or semi-automatically in relation to loss of earnings up to the date of hearing. It was in that context looking at the requirement then contained within the Contracts of Employment Act 1973 in relation to notice pay on the termination of employment. It was focusing therefore on the amount of notice pay that an unfairly dismissed employee would have received if he had been dismissed in the proper manner.

179. The claimant was also under a duty to mitigate loss by actively seeking and if possible obtaining alternative employment.

180. The basic award may also be reduced by a tribunal where the employee’s conduct before dismissal makes a reduction just and equitable - Article 156(2) of the 1996 Order.

181. In relation to the compensatory award, if the tribunal ‘finds that the dismissal was to an extent caused or contributed to by any action of the complainant, it shall reduce the amount of compensatory award by such proportion as it considers just and equitable having regard to that finding’.

182. Where a compensatory award is to be reduced because of a failure to mitigate loss and also because of contributory conduct, the deduction in relation to mitigation of loss shall be applied first followed by the deduction in relation to contributory conduct - Digital Equipment Company Ltd v Clements [1987] IRLR 140.

Basic Award

183. The tribunal has not been assisted by the provision of a detailed and clear schedule of loss in this matter. The matter has been made more difficult by the variable nature of the claimant’s wages and hours and with the variable nature of tips, part of which were through credit cards and recorded on the wage slips and part were cash tips and were not recorded anywhere. In terms of the basic award the parties agreed that the gross weekly wage (excluding tips) of the claimant in employment of the first-named respondent should be £200.00 per week. The tribunal concludes that in this form of employment it would be appropriate to include the average tips disclosed on the claimant’s pay-slip. The parties agreed that if that were the case the tribunal should use the figures in relation to July to December 2014 to determine average weekly tips. Those figures amount to a total amount of tips over the six months of £1,392.00. If that figure is divided by 26 weeks that equates to a weekly figure of gross tips of £53.53. Therefore the total weekly earnings in the employment of the first-named respondent, for the purposes of the basic award, is a figure of £253.53 gross. The claimant is therefore entitled, under the statutory formula, to four weeks’ gross pay as basic compensation and that equates to £1,014.12. In the circumstances, the tribunal does not consider it just and equitable to reduce the basic award.

Compensatory award

184. The claimant gave one week’s notice on 27 June 2015 and therefore her employment ended with the first-named respondent on 4 July 2015.

185. She started work in Ox Restaurant on 21 July 2015 after the twelfth break and continued until 5 September 2015. That was a relatively short period of employment and appears to have been somewhat uncertain. On balance, the tribunal concludes that it would not be appropriate, in the circumstances of the case, to treat this brief interlude as breaking the chain of causation.

186. The tribunal has indicated its concern about the source of 26 job application acknowledgements on the same date and has concluded that an attempt has been made to fill out a job search history. In the event, the tribunal still considers the claimant had properly sought to mitigate her loss. She had obtained employment in Ox. She had registered with recruitment agencies and had obtained administrative work from mid-October 2015 to February 2016. No loss is claimed after the latter date. The claimant had also obtained work in a wine wholesaler from 12 November 2015. She had no need to ‘fill out’ a job search history.

187. The tribunal has considered the issue of contributory conduct. The issue of contributory conduct applies to constructive dismissals as it applies to direct dismissals - Morrison v ATGWU [1989] IRLR 381. The claimant’s attitude to authority was blameworthy and had contributed to her eventual constructive dismissal. However, she had not been the only one to blame. As indicated above, the respondents had failed to properly manage her and had allowed an unpleasant working environment to develop. Her informal grievance had not been properly addressed by Mr Reid. On balance, the tribunal concludes that the appropriate deduction for contributory conduct by the claimant is 20%. She had been the junior employee at all relevant times. She had not been appropriately managed by the respondents.

Calculation of compensatory award

188. The parties agreed to submit a joint document in relation to net income. That document was not submitted. The tribunal therefore, in an attempt to resolve this issue, is forced to reach its own conclusions in relation to net income. Given that the claimant would have been entitled to a significant tax free allowance, the amount of tax payable is likely to have been minimal and is therefore disregarded for the purposes of this calculation.

189. The figure of £253.53 is therefore going to be used for the compensatory award.

190. The appropriate period for assessing loss is 4 July 2015 to 26 February 2016. That is a total of 33 weeks. The total financial loss (less earnings elsewhere and contributory conduct deduction) is therefore:-

33 x £253.53 = £8,366.49

191. The earnings by way of mitigation in both the wine wholesaler and the recruitment agency totalled £1,705.52.

The earnings in Ox were £500.53.

The total earnings in mitigation appear to have been £2,206.05. However these figures have not been presented to the tribunal in any coherent manner.

192. The net loss of earnings in therefore £6,160.44.

193. Applying the 20% contributory conduct deduction the compensatory award is therefore £4,928.26. No other deduction is appropriate.

Total Award

194. The total of the basic award and compensatory award is £5,942.38.

195. The claimant is also awarded four weeks’ gross pay under Article 27 of the 2003 Order. Given the longstanding and continuing failure on the part of the first-named respondent to implement this basic requirement, the tribunal considers is just and equitable to award more than the minimum award. The amount of this award is £1,014.12. This does not appear to be an appropriate case for a recoupment order.

196. The total award is therefore £6,956.50.

197. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.

Vice President

Date and place of hearing: 8 - 12 August 2016, at Belfast

Date decision recorded in register and issued to parties:

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You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Murray v Fine Foods (Lisburn Road) Ltd ... [2016] NIIT 00883_16IT (23 September 2016) URL: http://www.bailii.org/nie/cases/NIIT/2016/00883_16IT.html Cite as: [2016] NIIT 00883_16IT, [2016] NIIT 883_16IT

Industrial Tribunals Northern Ireland Decisions