'Discrimination' claimant ordered to pay Borders hoteliers £2,800

by LESTER CROSS

A former assistant manager at a leading small hotel in the Borders has been ordered to pay her former employers more than £2,800 after her claims of racial and sexual discrimination were thrown out by an Employment Tribunal ruling earlier this year.

After Portuguese national Tina Nogueira's allegations against the owners of Carfraemill Hotel, near Lauder, were dismissed in March, the family-owned business sought an award of what were described as “expenses and punitive costs” but which the Tribunal interpreted as an application for a preparation time order and out of pocket expenses.

A  tribunal hearing had been told that at the time the claimant was employed at the 10-bedroom Borders hostelry, part of the Inntuitive Group run by the Reeley family, the business had over 100 employees and now have around 300. At any given time around 40% of the employees are foreign nationals. 

Ms Nogueira, who was living in Scotland in 2021, placed an advertisement looking for work. She had taken her previous employer in Portugal to court for non-payment of wages.  

Following an interview she was subsequently offered employment as assistant manager at Carfraemill on a salary of £25,000 per annum.

After leaving her job Ms Nogueira submitted a claim to the Tribunal in which she alleged race discrimination and that she was due sums following the termination of her employment in respect of holiday pay and unpaid wages. 

She had previously made claims of sex discrimination and unfair dismissal which were withdrawn. A hearing took place over a total of eight days in November and December 2022 and March 2023. In a judgment signed on 31 March all of the claims were dismissed.

A second judgment, published today, deals with the respondent's request for financial recompense from the claimant.

The judgment from employment judge Ian McFatridge states: "In this case it was the respondent’s position that the claim was wholly vexatious. It was the respondent’s position expressed several times during the hearing that the claimant did not have any genuine belief that her treatment had been on the basis of race but that she had simply ticked the box once she discovered that she did not have sufficient qualifying service to bring a claim of ordinary unfair dismissal."

The claimant’s representative had made the point that she believed strongly in the justice of her claim.

However, the judgment continues: "With regard to the way the proceedings had been conducted the respondent’s position was that the claim had been incoherent and that throughout the claimant had been urged to provide some evidence showing, even in the slightest degree, a connection between the poor treatment she alleged and her nationality and the claimant had singularly failed to come up with this.

"The Tribunal’s view of the matter was that the claimant’s behaviour throughout the hearing certainly met the standard of being unreasonable."

In a highly critical section of his ruling, Judge McFatridge writes: "Whilst the Tribunal accepted that the claimant may have honestly believed that she had been treated badly the objective facts of the matter suggested that this was simply not the case. Much of what the claimant complained of; having to come in to work to cover staff absences, not having control of the rotas of other staff were simply features of the job of assistant manager. 

"On a number of matters the Tribunal found that the claimant’s evidence was entirely disingenuous and that she was quite happy to try to bend the truth where she felt this would assist her case. An example of this was in relation to her eventually admitting that she had herself approved her holidays in January for dates which management would never have allowed.

"With regard to the meat and bones of her race discrimination claim the Tribunal found absolutely no scintilla of evidence that any of the claimant’s treatment was in any way discriminatory."

The judgment concludes that the respondent had been put to considerable trouble and expense as a result of the claim being made and the way the claim was conducted. 

"We are in no doubt that it would also have been a cause of worry and concern to them. They are employers of a large number of employees of foreign origin and it would be a concern to them to be accused of race discrimination despite there being no evidence to support such a claim."

 The sums sought by the respondent included a charge for preparing for the hearing of 110 hours. The Tribunal considered this was a reasonable figure for the time to be taken to prepare for such a hearing. If anything, it was on the conservative side. The business had charged this at £25 per hour but the statutory figure for 2022 was in fact £42 per hour.

"Taking into account the correct figure then the total preparation time for the 110 hours spent preparing for the Tribunal would come to £4620. Given that the respondent restricted their application to a total of £5640 we felt it appropriate to base our 50% on that. The claimant shall therefore pay £2820 to the respondent."