DEC-E2003-033 Full Case Report

Amrabure (Represented by Colgan & Co. Solicitors) V IBM International Holdings BV (Represented by Arthur Cox Solicitors)

1. DISPUTE

1.1 This dispute concerns a claim by Mr. Mathias Amrabure that IBM International Holdings BV discriminated against him in terms of Sections 6(1) and 6(2)(f) of the Employment Equality Act, 1998 and in contravention of Section 8 of that Act when he was denied training, promotion and a transfer request.

2. BACKGROUND

2.1 The complainant is a black Nigerian who has been an employee of the respondent organisation since October, 1999 as a Band 1 employee. He alleges that he was denied training, promotion and had a transfer request refused on the grounds of his race. The respondent denies the allegations.

2.2 Consequently the complainant referred a complaint to the Director of Equality Investigations on 29th May, 2002 under the Employment Equality Act, 1998. In accordance with her powers under Section 75 of that Act the Director then delegated the case to Gerardine Coyle, Equality Officer on 29th November, 2002 for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Act. Submissions were received from both parties to the claim and a joint hearing took place on 10th June, 2003. Additional information was received from the respondent on 27th June, 2003.

3. SUMMARY OF THE COMPLAINANT'S SUBMISSION

3.1 According to the complainant he is a black Nigerian who commenced work with the respondent organisation on 18th October, 1999 in the microelectronics division. After five months he was moved from this department to the CPC Department and after two weeks training in that Department he was moved again to PINS Department. The complainant says that this move was effected in February, 2000. The complainant worked in the PINS Department until September, 2000. He states that he was the only person working in this Department on the early shift and despite sole responsibility and an exemplary record while working there the complainant was not promoted from the level of Grade I employee. It is the complainant's contention that the failure to promote him at this time was for reason of his race and colour.

3.2 The complainant states that in October, 2000 the PINS Department was integrated into the duties of Production Leads. At the time his job was integrated into the job of the Production Leads the complainant was told by his manager that he would not be promoted straight away but a promotion was a distinct possibility if he continued to perform his duties to a high standard and if he responded well to training. According to the complainant he worked in tandem with the Production Leads until October, 2001 but he became hugely frustrated during this period as training was not forthcoming. The existing Production Leads were wholly unhelpful and the training they were obliged to give to the complainant was not given. The complainant says that he endeavoured to advance the situation by making representations to his manager and sending e-mails to both his manager and other Production Leads but to no avail. It is the complainant's contention that the failure of the respondent to afford him proper access to training, and as a consequence to the opportunity of promotion, amounted to further discrimination on the grounds of his race and colour.

3.3 In October, 2001 the complainant states that he was moved to the AS400 Department. He says that it was proposed that he be employed at an entry level position in the Assembly Division with the job title Receiver. According to the complainant the effect of this change was hugely demotivational having worked for approximately 18 months in positions of some consequence. It is the complainant's contention that he should have been employed at the higher level position of IPIC and the failure to do so was again the consequence of discrimination on the grounds of race.

3.4 The complainant states that in or about November/December, 2001 he was denied the opportunity to avail of a France based training course by his current manager who had previously worked with him as a Production Lead. It is the complainant's contention that this behaviour amounted to discrimination on the grounds of race. As a consequence of not been allowed to avail of this training course the complainant was denied an exciting learning opportunity and by extension an opportunity to advertise his suitability for promotion. In or about February, 2002 the complainant continued to be employed as a Receiver. At this time the respondent hired a number of contract workers and of these two Spanish nationals were assigned to work with the complainant. Within two months of employment one of these two workers was promoted and trained as an IPIC. The complainant notes that the position was not advertised and he was given no opportunity to apply. According to the complainant this Spanish national subsequently left the employment of the respondent organisation in September, 2002. The second of the two Spanish contract workers was later promoted to the position of IPIC in November, 2002. The complainant notes that around May, 2002 an Irish National who was originally a receiver in another unit was given training as an IPIC and then about June, 2002 he was appointed as the complainant's supervisor.

3.5 The complainant states that in or about August, 2002 he requested a transfer to another Department and his request was refused. Instead he was promised training in the tasks of an IPIC over a prolonged period of time and since that promise he has received little training. It is the complainant's submission that the failure of the respondent to afford him either the promotional or training opportunities afforded to other employees amounts to discrimination against him on the grounds of race. The complainant further submits that his specific claim of discrimination on the grounds of race and colour is validated by an examination of the general situation obtaining to other black Nigerian workers in the respondent organisation. It is the complainant's contention that there is a general failure to afford this class of employee similar promotional and training opportunities as are afforded to other IBM employees. In conclusion the complainant states that he has now been working with the respondent organisation for approximately three and a half years. He states that he has never been the subject of the respondent's disciplinary procedures. According to the complainant he is a loyal employee and he wishes to make a career with the respondent organisation but despite this he has never been promoted and remains a Level I employee.

4. SUMMARY OF THE RESPONDENT'S SUBMISSION

4.1 According to the respondent the complainant has been employed as a Manufacturing Production Operator at Band 1 level since his employment with the respondent organisation commenced. It is the respondent's intention to respond to the specific allegations made by the complainant in his submission in respect of alleged race discrimination as follows:
- through failure to promote the complainant prior to September, 2000;
- through failure to provide training to the complainant up to October, 2001;
- through the role and grade at which the complainant was employed in the "AS400 Department";
- through the denial to the complainant of the opportunity to avail of a France-based training course;
- through the decision to promote Spanish nationals and provide training to Spanish nationals in or about February, 2002;
- through the provision of training to an Irish national as an IPIC and the appointment of that person as the complainant's supervisor in June, 2002;
- through the refusal of the complainant's transfer application in August, 2002 and the failure to provide promised training thereafter;
- through general discrimination against other black Nigerian workers in the employment of IBM with reference to promotional and training opportunities.

4.2 For clarity the respondent has explained acronyms used by the complainant in his submission as follows:
- CPC may be referred to as a Clean Pack and Cover process;
- PINS may be referred to as an activity which is part of the CPC process however it was specifically a French logistics software system.
The primary function of the system was to print labels and it was replaced in August, 2000 by MFS and RPDS software systems. It was not a Department or a Cost Centre.

4.3 Alleged failure to promote complainant up to September, 2000

4.3.1 The respondent notes that this claim was referred to the Equality Tribunal on 11th May, 2002 and states that by reason of Sections 77(5) and 77(6) of the Employment Equality Act, 1998 this aspect of the complaint is not something for which redress can be awarded under the 1998 Act.

4.3.2 Without prejudice to the above the respondent states that following the complainant's internal transfer to the Server Manufacturing Division in 2000 he was trained to carry out the tasks of a Production Operator working on the CPC and PINS process. The complainant carried out his tasks for a period of approximately seven months. During this time his workload increased and decreased quarterly in line with a rise and fall in production peaks. When the complainant worked on the CPC process, which included the use of the PINS system, four other male employees (a Band 1 employee, a Band 2 employee and 2 Band 3 employees) also carried out the same tasks. The respondent, therefore, denies that the complainant was solely responsible for work carried
out on the PINS software system.

4.3.3 The respondent states that there was one other Band 1 employee assigned to the PINS and he was not promoted during the period the complainant worked in this area. According to the respondent the complainant's responsibilities did not broaden during this period nor did he take on additional tasks during peak periods, the value of the position did not change and promotion to a higher band would not have been justified. It is the respondent's contention that the complainant was not treated less favourably than any other comparable employee and his race/nationality had no bearing on the treatment of him.

4.4 Alleged failure to provide training to the Complainant up to October, 2001

4.4.1 The argument set out in paragraph 4.3.1 applies in this instance. The respondent further notes that no exceptional circumstances have been shown by the complainant as to why the six month time limit should be extended to 12 months.

4.4.2 Without prejudice to the argument at 4.4.1 the respondent states that its Manufacturing Training system provides a methodical and consistent approach to training of new hires and continued training thereafter. New hires initially receive a two day induction class. Following induction each new employee is assigned a "systematic trainer" from the manufacturing on boarding team. The trainer is required to bring the new hire to a level of skill required to perform heir tasks. The training provided enables the employee to complete a set of tasks and in total perform their given role as a production
operator. All employees are also offered on an annual basis an opportunity to complete, with their manager, an individual development plan (IDP). Employees are responsible for creating and submitting their IDP and they may decline the opportunity if they wish. The IDP provides an agreed roadmap for personal development. The respondent states that prior to 2002 the complainant did not complete an IDP. He was specifically encouraged to do so by his manager for 2002 and he did do so. The respondent says that on his IDP he put down IPIC training only. According to the respondent this was completed by the trainer in his Department through 1 hour training sessions weekly to the end of 2002. The respondent notes that the complainant's IDP has not yet been completed for 2003. According to the respondent employees in Manufacturing may avail of Computer Based Training (CBT) opportunities (with over 300 available options) should they wish to develop their professional IT skills. The respondent submits that training is widely available for all
employees should they wish to avail of the opportunity. "On-the-job training" is carried out by the on-site trainers, when a skill gap is identified. The specific training schedule is primarily business driven and individuals receive "on-the-job training" for positions assigned to them. It is the respondent's contention that they are not trained in tasks that are irrelevant.

4.4.3 The respondent states that following the complainant's assignment to the CPC and PINS activity he was given some new tasks which replaced those which he formerly carried out while working on the PINS system. The PINS system had ceased operating in August, 2000 hence his activity level had decreased. According to the respondent the complainant was required to carry out replacement tasks between October, 2000 and October, 2001. The respondent denies that it failed to train the complainant on the grounds of race in the activities of a Production Lead as the complainant was trained to deliver the replacement tasks as required by the role which had been created to replace his former PINS based activity. The respondent also notes that it did not train any other person on tasks which did not relate to their overall job responsibility during this period of time. It therefore submits that it did train the complainant to the required task level and
he was trained in accordance with the respondent's policy on training. It is the respondent's contention that the complainant was not treated differently or less favourably because of his race or nationality.

4.5 Alleged failure to appoint the complainant to a higher banded position in February, 2002 when he was assigned to tasks of an AS400 Series Receiver

4.5.1 The respondent states that the assertions in the complainant's submission in this regard are erroneous for the following reasons:
(a) In October, 2001 the complainant moved to S390 systems as a Production Operator Band 1 (Build) (Z Series Brand);
(b) In February, 2002 the complainant moved to Production Operator Band 1 (Receiver) solely dedicated to AS400 systems (I Series Brand);
(c) The complainant was moved to the AS400 receiver role in February, 2002 following a number of meetings held to discuss issues he had with his position, working as a builder
on S390 systems (Z Series)
.
4.5.2 The respondent's grading structure is based on Bands numbered 1 through 10 for all non-executive employees globally; bands apply to both manager and non-manager roles. The respondent states that progression within the banding structure is driven by a number of factors but is primarily based on the level of responsibility associated with a position. A band is not assigned to any employee based on their individual readiness to progress or their capability within the role. The respondent states that the breadth and value to the business of the assigned tasks are the key factors in determining a promotion to a higher band. According to the respondent the influencing factors are development of one's personal skills, coupled with a business need for an employee to fulfil a role which has a greater responsibility and impact on business results and the employee's personal performance while working with it. The process where the respondent creates a job, carries out a job evaluation and assigns a band to a given role is outlined in Appendix A.

4.5.3 The respondent states that the summary evaluation of the Receiver role, based on its evaluation process in the current manufacturing environment indicates that this position should be pitched at Band 1. According to the respondent the Band 1 activities of a "Receiver" have predefined procedures, problems are referred to the appropriate person and in general the operative would follow direction without the responsibility of directing others. The respondent says that all Receivers are Band 1 employees. It is the respondent's submission that promotion to a higher band is not based on a request from an individual or years of service as implied by the complainant in an e-mail in March, 2002 to the Manufacturing and Engineering Operations Manager. The respondent contends that the complainant was not treated any differently or less favourably than any other comparable employee and that his race/nationality had no bearing on his treatment.

4.6 Alleged denial of the complainant of the opportunity to avail of a France-based training course

4.6.1 The respondent scheduled a product transfer to Dublin from Montpelier (France) in February, 2002. The product was "Regatta P690" a high end P series product that is built on Z series manufacturing lines. A number of Dublin Z series Build Operators and Test Technicians were required to spend some time in France for "on-the-job training" so that they could build and test the product when it arrived in Dublin. According to the respondent the complainant and another male employee (non-EU citizen) was scheduled to travel to France on 9th December and return on 23rd December, 2001. The respondent says that in order to ensure that non-EU citizens can travel freely in and out of Ireland when travelling on business it (the respondent) is required to submit to relevant Government Departments letters confirming the nature of the travel and additionally check that the travel papers are in order. In this regard the relevant Government Departments were contacted in December, 2001 to establish the requirements for these employees to travel to France. According to the respondent it was advised that both employees needed to have Green books which are provided to asylum seekers so that they may reside in Ireland and Blue books (travel documents) to allow asylum seekers to travel out of Ireland. However the respondent says that it was advised that it would only be in extreme circumstances that asylum seekers would be allowed to travel. Both employees had submitted Green book numbers to their managers. According to the respondent it was also advised that as the employees did not present passports their travel would be restricted and it would be irregular for either of these employees to have home country passports as they had applied and received Green books from the Irish authorities as asylum seekers. The respondent states that it was confirmed by the Immigration/Asylum Office in Mount Street that the complainant and his colleague were confirmed as only being allowed to remain and work in Ireland as they were registered asylum seekers. Following this clarification the respondent withdrew travel plans for both employees and advised them accordingly.

4.6.2 Following cancellation of the travel plans the respondent says that the complainant indicated that he had in fact a home country passport which he had passed to his manager at that time and which had been used previously to travel to Europe. On previous occasions, to assist with his return to Ireland, the Z-Series Operations Manager had supplied confirmation of his employment status in Dublin. The complainant met with the respondent and, according to the respondent, its explanation of the above at paragraph 4.6.2 was unacceptable to him. The respondent refutes the allegation that it discriminated against the complainant on the grounds of race by denying him access to training. It says that from 28th November through to 6th December, 2001 the respondent's recruitment team made every effort to meet the requirements of their job which is to ensure employee papers are in order if travelling abroad on respondent business. The respondent submits that the onus is on any non-EU citizen to ensure that they have all the necessary papers to travel on business if required to do so. The respondent notes that the complainant's colleague was rescheduled to travel to France for training in March, 2002 and by this time he had obtained the necessary travel documents (Blue book) but he was again unable to travel as the French Embassy in Dublin refused to give him a visa.

4.6.3 The respondent states that based on the developments in the case of the complainant's colleague it submits that it was correct in its assessment of the issues relating to non-EU asylum seekers travelling in and out of Ireland in December, 2001 and it submits that had the complainant travelled at this time he may have had difficulty gaining re-entry to Ireland. The respondent says that the complainant was not rescheduled to travel later as he was working as a Receiver and was no longer a Z series build operator. The respondent says that in this instance it was simply complying with its obligation to respect Irish and French immigration laws and practices and by so doing it did not infringe the 1998 Act.

4.7 Respondent's decision to promote and train Spanish nationals in or about February, 2002

4.7.1 In relation to the two Spanish nationals referred to by the complainant the respondent states that one of them was converted to regular full time employment on 25th February, 2002 and he subsequently left the respondent organisation on 30th September, 2003. The other Spanish national was converted to regular full time employment on 5th June, 2002 and is still employed in the respondent organisation. According to the respondent both Spanish nationals had previously worked for a complementary workforce agency. Their job titles were/are Production Operator with a Band 1 grading. Their specific tasks/responsibilities were/are those of a Receiver and neither of them were promoted to a higher grade at any time during their employment with the respondent.

4.7.2 The respondent states that it actively pursued a discrimination-free hiring and promotional process as per company policy. It currently employs representatives from 60 different nations. In order to protect equal rights for all, the respondent states that it promotes people based on the person being the "best person for the job (BPFJ)". Set out in Appendix B is a summary review of the respondent organisation's promotional activity by reference to Nationality. Data on "nationality" is collected after recruitment, on a voluntary basis, by reference to the employees country of birth or the country that has issued the employee's passport. The respondent says that it does not seek to validate the data provided by individuals who choose to complete this data field. It is the respondent's contention that the complainant was not treated differently or less favourably than any other comparable employee and the complainant's race/nationality had no bearing on the treatment of him by the respondent organisation.

4.8 The provision of training to an Irish national as an IPIC and the appointment of that person as the complainant's supervisor in June, 2002

4.8.1 The respondent notes that this aspect of the complainant's claim relates to a period after the complaint was filed with the Equality Tribunal. The respondent states that it understands that this aspect of the complaint relates to a female employee who was appointed Team Lead in the complainant's work area having previously worked as a Team Lead in another area (The Crib). In this case this female employee was appointed based on Team Lead experience. She did not have previous experience working as an IPIC or a Receiver but she did have considerable Team Lead experience. According to the respondent the complainant did not apply for the position when it was posted.

4.8.2 The respondent states that its internal recruitment process is that vacant positions are advertised on the internal BPFJ plus tool and all respondent organisation employees may apply. Based on a set of rules (e.g. 12 months in current role) applications will be released to the hiring manager. The hiring manager shortlists the candidates who match the skill set outlined in the advertisement. Interviews are held and a final selection is decided. The successful candidate will be selected based on them being "the Best Person for the Job". The respondent says that those who are not successful will receive feedback via the hiring manager or their direct manager.

4.8.3 The respondent states that as it employs people based on skill match to all open positions it cannot discriminate on the grounds of race with regard to appointments to IPIC roles or Team Lead positions in 2002. Furthermore the respondent states that the complainant was not treated differently or less favourably than any other comparable employee and the complainant's race/nationality had no bearing on his treatment.

4.9 The respondent's refusal of the complainant's transfer application in August, 2002 and the alleged failure to provide promised training thereafter

4.9.1 The respondent notes that this aspect of the complaint by the complainant relates to a period after the complaint was filed with the Equality Tribunal. The respondent states that, in August 2002, the complainant requested a shift change which would move him from one team to another. At this time the complainant had complained that he had not progressed from a Receiver role after 7 months working in the position and that he had not received enough training. The first line manufacturing manager (IPIC Manager) investigated the complaints.

4.9.2 According to the respondent the first line manufacturing manager (IPIC Manager) treated the complaints in relation to Shift Change, Position as a Receiver and Quantity of Training separately.

Shift Change
At August, 2002 based on an interim review of the complainant's performance it was believed that he would be performing at a PBC 3 rating. A PBC 3 rating definition is "achieve some/most commitments". The respondent says that all employees who are rated 3 are coached for improvement to support their achievement of (or to exceed) all of their commitments. According to the respondent the complainant was made aware of the rating and advised that he needed to improve. The respondent says that the complainant did not dispute that interim PBC rating. A decision was taken not to grant the shift change until such time as the complainant had demonstrated a sustained improvement in his performance. The respondent says that at year end the complainant had improved his performance and was awarded a PBC 2 rating but he has not renewed his application for a shift change. It is the respondent submission that were he to do so and were there a vacancy, any such application would be considered. The respondent says that the complainant would now be considered ready for an IPIC role based on his improvement if and when an opening arises and he applies for the position. It is the respondent's contention that in this way the complainant would be treated in the same way as all employees in the respondent organisation who wish to change jobs to a higher level.

Position as Receiver
The respondent states that the first line manufacturing manager (IPIC Manager) made no comment in regard to this aspect of the complaint as when the complainant was given a Receiver role his promotion was not a foregone conclusion as is the case for any person employed in the respondent organisation.

Quantity of Training
The respondent states that training in the area is primarily "on-the-job training". However the team has an appointed Trainer. Following this request the respondent says that the first line manufacturing manager (IPIC Manager) requested weekly training sessions for 1 hour with the complainant for the remainder of 2002. According to the respondent the Trainer completed this task.

4.9.3 The respondent states that it followed through an agreed training programme based on its training policy, that the complainant's shift change request was refused at the time as he needed to improve his performance in his current role prior to moving to another position, manager or team. In this regard the respondent says that the complainant was not treated differently or less favourably than any other comparable employee and his race/nationality had no bearing on the treatment of him.

4.10 Alleged general discrimination against other black Nigerian workers in the employment of the respondent organisation with reference to promotional and training opportunities

4.10.1 The respondent strenuously denies this allegation and submits that reference to all other Nigerian employees in the respondent organisation is irrelevant to the specific complaints raised by the complainant in this claim.

4.10.2 The respondent reiterates its Manufacturing Training system as set out in paragraph 4.4.2 above and says that its training policy and application in practice have no regard whatever to the race or nationality of particular employees within its organisation.

4.10.3 With regard to promotional activity internal applications and promotions thereafter in the respondent organisation are based on the Best Person For The Job process which provides for structured interview processing and selection of candidates. The respondent says that this policy and its application in practice have no regard whatever to the race or nationality of particular employees within the organisation.

4.11 The respondent states that it is for the complainant to establish to the satisfaction of the Equality Officer that he has been discriminated against contrary to the 1998 Act and it is not for the respondent to disprove discrimination. According to the respondent the law relating to the issue of presumption of discrimination or the drawing of an inference of discrimination has been most recently and authoritatively considered by the High Court in Davis v Dublin Institute of Technology and The Minister for Justice Equality and Law Reform². In that case, which related to alleged sex discrimination and which was an appeal to the High Court on a point of law from the Labour Court under the Employment Equality Act, 1977, the High Court noted that the Labour Court had considered a very substantial volume of evidence as to the prior experience and responsibilities of those of the claimant/appellant, the successful appointee and the other Applicant. The respondent notes that the High Court relied on a decision of the House of Lords in the case of Glasgow City Council .v. Zafar³ as an authority on the issue of burden of proof. The respondent states that the High Court in Davis concluded as follows with regard to this matter:
"In cases where discrimination on grounds of sex is alleged to have occurred contrary to the provisions of section 2(a) of the 1977 Act, the fact that there is a gender difference between the successful and unsuccessful applicants for a post or for promotion does not, by itself, require tribunals such as the Labour Court to look to an employer for an explanation of the type referred to in Zafar (Supra). A primary finding of fact by such a tribunal of discrimination or of a significant difference between the qualifications of the candidate "together with a gender difference" may give rise to such a requirement but in this case the primary finding of fact by the Labour Court was that there was no significant difference between the professional and academic qualifications of Miss Davis and those of the successful appointee and that there had been no discrimination by the Institute in the appointment which was made.
It follows from the foregoing that I am not satisfied that the applicant, Miss Davis, has discharged the onus of proving that the Labour Court has erred in law in any respect in making its determination of 2nd November 1999 and accordingly the Applicant's appeal is dismissed and the relief which she seeksis refused".

4.12 The respondent submits that the law relating to the presumption of discrimination or the drawing of an inference of discrimination as set out in the Davis case applies equally to cases of alleged race discrimination. In particular the respondent submits that there is nothing in this claim that requires the Equality Officer to look to it for an explanation and the complainant's submission offers no evidence whatever with regard to nationality/race discrimination. The respondent states that the foregoing is consistent with the European Communities (Burden of Proof in Gender Discrimination Cases) Regulations, 2001⁴ which has in fact been applied by Equality Officers to race discrimination cases for instance in the case of Sergides v Feehily's Pub⁵. The respondent concludes that it is for the complainant to establish facts to the satisfaction of the Equality Officer from which a presumption of race discrimination arises before it (the respondent) is required to prove the contrary. It is the respondent's contention that the complainant in this case has singularly failed to establish any such facts and the respondent asks the Equality Officer to reject the complainant's claim and not to award him any remedies or reliefs.

5. CONCLUSIONS OF THE EQUALITY OFFICER

5.1 The issue for decision in this claim is whether or not the respondent discriminated against the complainant in terms of Sections 6(1) and 6(2)(f) of the Employment Equality Act, 1998 and contrary to the provisions of Section 8 of that Act. In making my decision in this claim I have taken into account all of the submissions, both written and oral, made to me by the parties.

5.2 The traditional approach taken to complaints of discrimination on the original ground of sex in the caselaw of the European Court of Justice, and sex and marital status in the caselaw of Equality Officers and the Labour Court has been that once a complainant establishes a prima facie claim of discrimination the onus then moves to the respondent to rebut the presumption of discrimination. The common law approach has become the statutory requirement in complaints of gender discrimination in employment following the transposition of Council Directive 97/80/EC into Irish Law on 18th July, 2001 by means of the European Communities (Burden of Proof in Gender Discrimination Cases) Regulations, 2001⁶. The Regulations provide that:
"[w]here in any proceedings facts are established by or on behalf of a person from which it may be presumed that there has been direct or indirect discrimination in relation to him or her, it shall be for the other party concerned to prove the contrary".

5.3 The Employment Equality Act, 1998 introduced seven new grounds of discrimination (including age) not drawn directly from European Union Directives or European Court of Justice caselaw. The Council Directive and Regulations mentioned above are not directly applicable to grounds other than gender, but this approach appears to me to be fully consistent with the development of discrimination caselaw. It has become the standard approach of Equality Officers in deciding cases under the 1998 Act such as on the disability ground⁷, on the race ground⁸, on the age ground⁹ and I intend to apply it to this complaint.

5.4 The first requirement, therefore, is for the complainant to establish facts from which it
may be presumed that the principal of equal treatment has not been applied to him.
The Labour Court in the case of Teresa Mitchell v Southern Health Board (Cork University Hospital)¹⁰ held that:
".... this approach means that the appellant must first prove as a fact one or more of the assertions on which her complaint of discrimination is based. A prima facie case of discrimination can only arise if the appellant succeeds in discharging this evidential burden. If she does the respondent must prove she was not discriminated against on grounds of her gender. If she does not, her case cannot succeed".

5.5 The complainant has made a number of allegations of discriminatory treatment of the grounds of race as set out in below:
(a) Alleged failure to promote the complainant prior to September, 2000;
(b) Alleged failure to provide training to the complainant up to October, 2001;
(c) Alleged role and grade at which the complainant was employed in the "AS400 Department";
(d) Alleged denial to the complainant of the opportunity to avail of a France-based training course;
(e) Alleged decision to promote Spanish nationals and provide training to Spanish nationals in or about February, 2002;
(f) Alleged provision of training to an Irish national as an IPIC and the appointment of that person as the complainant's supervisor in June, 2002;
(g) Alleged refusal of the complainant's transfer application in August, 2002 and the failure to provide promised training thereafter;
(h) Alleged general discrimination against other black Nigerian workers in the employment of IBM with reference to promotional and training opportunities.

5.6 Section 77(5) of the Employment Equality Act, 1998 provides that:
".... a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of period of 6 months from the date of the occurrence of the act of discrimination or victimisation to which the case relates".
The complainant referred his claim to the Director of Equality Investigations on 29th May, 2002. While a number of allegations are outside the six months time limit provided in the 1998 Act I am satisfied that all the allegations relate to the issues of training and promotion and can be treated as continuing discrimination with the most recent occurrence of the act of discrimination taking place in February, 2002. I note that the complainant, in his referral form, indicated that the "Date of most recent occurrence of discriminatory act" was April, 2002. However in his submission he failed to outline what alleged discriminatory act took place in April, 2002.

5.7 It is my intention to address each of the allegations set out at paragraph 5.5(a) to 5.5(e) above as follows:
(a) Alleged failure to promote the complainant prior to September, 2000:
Prior to September, 2000 the complainant was carrying out the tasks of a Production Operator working on the CPC and PINS process as a Band 1 employee. It is the complainant's contention that he was the only person working in this Department on the early shift and despite having sole responsibility for the working of this Department he was not promoted.
According to the respondent the complainant did not have sole responsibility for the working of this Department as four other employees also worked there namely a Band 1 employee, a Band 2 employee and 2 Band 3 employees. I note that the other Band 1 employee who was Irish did not get promoted. Therefore I find that the complainant was not treated less favourably on the grounds of race.
(b) Alleged failure to provide training to the complainant up to October, 2001:
It is the complainant's contention that he was not given training by Production Leads as was promised. The respondent denies this and says that the complainant was trained to deliver the tasks required of him in his role. There is no evidence before me that the complainant did not receive the necessary training to carry out the tasks assigned to him. The respondent has outlined in detail a comprehensive training system which is available to all staff. I note that staff are offered the opportunity of completing an Individual Development Plan (IDP) which is an agreed roadmap for personal development. Prior to 2002 the complainant did not complete an IDP.
The PINS system ceased operating in August, 2000 and the complainant's activity levels decreased. Between October, 2000 and October, 2001 the complainant was required to undertake replacement tasks for which the respondent says he received training. At the hearing of this claim the complainant contended that he should have been promoted with this new role. There is no evidence before me that other employees of a different race were promoted to take on new replacement tasks. It should be noted that these tasks were not in addition to existing tasks as the existing tasks had become defunct. Furthermore I note that the respondent operates a global band structure where a job is created and assigned a band. The band is assigned to the job not to the employee. I am satisfied that there is no evidence before me that the complainant was treated less favourably on the grounds of race in relation to the provision of training up to October, 2001.
(c) Alleged failure to appoint the complainant to a higher banded position in February, 2002 when he was assigned to tasks of an AS400 Series Receiver:
According to the respondent the complainant was moved to the position of Receiver dedicated to the AS400 system following a number of meetings held to discuss issues he had with the job he was doing working as a builder on S390 systems. The grading structure in the respondent organisation is based on bands from 1 through to 10 which are based primarily on the level of responsibility associated with a position. It is the respondent's submission that the breadth and value to the business of the assigned tasks
are the key factors in determining a promotion to a higher band. Promotion to a higher band is not based on a request from an employee or even years of service. In this instance the complainant was moved to the job of receiver which is a Band 1 position and all persons employed as Receivers are Band 1 employees. I note that employees are rated annually on the basis of their performance and the complainant in December, 2000 received a Personal Business Commitment (PBC) of 3 (i.e. achieved commitments) and in December, 2001 he received a PBC of 2 (i.e. exceed some commitments). I am satisfied that there is no evidence that the complainant was treated less favourably on the grounds of race in relation to promotion in February, 2002.
(d) Alleged denial of the complainant of the opportunity to avail of a France-based training course:
I have examined all of the very comprehensive information (which is available to the Labour Court, if necessary) which was supplied to me by the respondent in relation to sending the complainant to France for training. I am satisfied that the respondent did everything possible to facilitate the complainant's attendance at this training but could not send him for reasons outside its control. These reasons related to restrictions imposed on travel between EU countries on non-EU citizens considered to be asylum seekers.
I understand that the complainant did not consider himself an asylum seeker but on his arrival in Ireland he was issued with a green book and applied for asylum which he did not pursue. The complainant married an EU national and this permitted him to reside and work in Ireland. However his documentation as passed to the respondent would not have been sufficient to grant him a Schengen Visa which is required to enter France. In conclusion, therefore, I find that the respondent did not treat the complainant less favourably on the grounds of race in relation to the training in France.
(e) Alleged decision to promote and train two Spanish Nationals in or about February, 2002:
The complainant alleges that two Spanish Nationals were employed and assigned to work with him. Within two months one of these employees was trained in IPIC and promoted while his colleague was promoted to the position of IPIC later that year. The respondent has denied this allegation and says that both employees were recruited as Production Operators with a Band 1 grading and carrying out the duties of a Receiver similar to the complainant. They received a basic level of training in IPIC to enable them to do their job as Receiver. According to the respondent the complainant would also have received this basic training. The respondent also states that neither employee were promoted to a higher grade at any time during their employment. I am satisfied that the complainant has failed to establish a prima facie claim of discrimination in relation to this allegation and I find that there is no evidence to support the contention that the complainant was treated less favourably on the grounds of race.

5.8 The complainant has alleged that he was subjected to discriminatory treatment on two occasions since the referral of his complaint to the Equality Tribunal. These allegations relate to a higher grade appointment, the refusal of a transfer application and training.

Higher Grade Appointment
In relation to the appointment to the Team Lead position I note that the complainant did not apply for the post when it was advertised hence he was not considered for it. There is no evidence that the respondent treated the complainant less favourably on the grounds of race in this regard.

Refusal of Transfer Request
In August, 2002 the complainant sought a shift change but this was refused because based on the interim review of his performance he received a Personal Business Commitment (PBC) rating of 3 (i.e. achieved commitments). According to the respondent the complainant was informed of this rating and told that he would not be granted a shift change until he demonstrated a sustained improvement in his performance. At the end of the year (2002) the complainant's PBC was 2 (i.e. exceed some commitments). However he was not offered a shift change because he did not renew his application. At the hearing of this claim the respondent stated that all staff refused shift change for performance related reasons must renew their applications once their performance improves. I am satisfied that there is no evidence that the complainant was treated less favourably on the grounds of race. However I consider that the complainant should not have been required to again request a shift change as he was told that he would not get a shift change until after his performance had improved. Once his performance had improved he should have got his shift change automatically if one was available.

Training
In relation to training the respondent states that the complainant received basic on-the-job training as did all other employees. He also received extra training on IPIC as he had requested in his Individual Development Plan (IDP). In conclusion I am satisfied that there is no evidence to substantiate the allegation of discrimination on the grounds of his race.
In terms of the above allegations I have considered them having regard to the definition of victimisation under Section 74(2) of the Employment Equality Act, 1998 even though the complainant did not refer a claim of victimisation. I consider that it was appropriate of me to do so having regard to the High Court in the case of Long v The Labour Court¹¹. Having examined these claims in terms of victimisation I find that the complainant was not subjected to victimisation under the 1998 Act.

5.9 It appears uncontested that the complainant is a highly motivated employee who is anxious to achieve promotion and to undertake any appropriate training. In the light of this I note the respondent's statement at paragraph 4.9.2 above that it now considers the complainant ready for an IPIC role when an opening arises.

5.10 The complainant alleged that there is discrimination against other black Nigerian workers in employment in the respondent organisation with reference to promotional and training opportunities. The respondent denies this allegation. I note that the complainant failed to adduce any evidence to substantiate this claim.

5.11 In conclusion, therefore, I am satisfied that the respondent did not subject the complainant to any discriminatory treatment on the grounds of race.

5.12 In order to ensure that vocational training opportunities are genuinely available to employees who are non-EU nationals I would recommend that the respondent enquire into any possible issues with the immigration laws of Ireland and a destination state in sufficient time to allow these issues to be resolved.

6. DECISION

6.1 In view of the foregoing I find that IBM International Holding BV did not discriminate against Mr. Mathias Amrabure on the grounds of race as alleged in terms of Sections 6(1) and 6(2)(f) of the Employment Equality Act, 1998 and contrary to the provisions of Section 8 of that Act.

___________________
Gerardine Coyle
Equality Officer
28th August, 2003

APPENDIX A

Classification of Jobs into Bands
Set out below is an example of IBM's Non-Exempt Position Reference Guide designed to support the process whereby managers evaluate a job and assign a PRG band.

APPENDIX B

Summary Review of Promotional Activity by reference to Nationality

2 High Court Mr. Justice Quirke Unreported 2000

3 UK House of Lords [1998] All ER 953

4 S.I. No. 337 of 2001

5 Equality Officer Decision DEC-E2002/022

6 S.I. 337 of 2001

7 Equality Tribunal - Harrington v East Coast Area Health Board - DEC-E2002-001

8 Equality Tribunal - Eng v St. James Hospital - DEC-E2002-041

9 Equality Tribunal - McCormick v Dublin Port Company - DEC-E2002-046

10Labour Court - DEE011

11High Court May, 1990