Mr A Orlik v No appearance NCR Financial Solutions Group Limited — 2019

Mr A Orlik, who is Polish, worked for NCR Financial Solutions Group Limited as a Senior Database Engineer in Edinburgh. He alleged race discrimination in pay, relying on a comparison with a colleague, Pankaj Sharma, who was described as of Indian nationality and recruited from India. The claimant had been offered a starting salary of £47,000 in September 2015, Mr Sharma had been offered £60,000, and the claimant's salary later rose to £49,600.

The preliminary hearing was concerned first with time limits and whether it was just and equitable to extend time. The tribunal found that the relevant act was the start of employment on 14 September 2015, with the lower pay continuing until the final salary payment on 15 October 2018. Even taking the later date, the ACAS early conciliation process meant the deadline was extended only to 10 February 2019, and the claim presented on 4 April 2019 was more than seven weeks late. Because the claimant did not attend and gave no explanation for the delay, the tribunal held that he had not shown it was just and equitable to receive the claim out of time.

The tribunal also considered prospects of success and found them limited. It held that direct race discrimination required less favourable treatment because of race, and that unfairness or a lower salary by itself was not enough. It considered that the comparator relied on by the claimant was not appropriate because it included a material difference: the tribunal said the correct comparator would be someone of Indian nationality living in Scotland, rather than a person born and living in India. The tribunal therefore concluded that it lacked jurisdiction to consider the claim and dismissed it; strike out and deposit order issues were not reached.