DEC-E2005-037 Full Case Report

Garcia Puga AND University College Dublin (Represented by IBEC)

1. DISPUTE
   1. This dispute concerns a claim by Joaquin Garcia Puga that he was discriminated against by University College Dublin on the ground of race contrary to the provisions of the Employment Equality Acts 1998 - 2004 when he
   2. The complainant referred a claim to the Director of Equality Investigations on 28 August 2003 under the Employment Equality Act 1998. In accordance with her powers under section 75 of that Act, the Director then delegated the case on 31 March 2004 to Anne-Marie Lynch, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Act. Submissions were sought from both parties and a joint hearing was held on 18 October 2004. A Spanish language translator was engaged by the Equality Tribunal to assist the operation of the hearing.
      
2. SUMMARY OF THE COMPLAINANT’S CASE
   1. The complainant, who is a Spanish national, was employed by the respondent as a temporary Catering Assistant on 16 January 2002. He was appointed in a permanent capacity on 1 June 2003, and his employment terminated on 14 August 2003. The complainant asserted that he was subjected to constant discriminatory treatment and harassment, because he was not Irish, during the course of his employment.
   2. Among the matters complained of, the complainant asserted that he was constantly being told by the Manager and Assistant Manager to wear his uniform. When he protested that others were not wearing theirs, he claimed he was told that he was not to be asking questions. The complainant said that he was shouted at regarding the uniform on at least two occasions.
   3. The complainant also asserted that he and other members of the wash-up staff (mostly non-Irish) were permitted only to have water with their meals. If they wished to have soft drinks, they had to pay for them. He alleged that other staff members (chefs, counter staff and cashiers, mostly Irish) were permitted to have a choice of drink with their meals. The complainant said he complained about this, and everyone was subsequently allowed to have the same choice.
   4. The complainant said that his meals were controlled by the Manager and Assistant Manager in the sense that he was required to return excess portions. He claimed that other members of staff were not controlled in this way. He also said that if he exceeded his 30-minute lunch break, he was immediately told to return to work. On the other hand, he claimed that chefs and others were frequently on break for up to 45 minutes, without anything being said.
   5. The complainant said he was not permitted to eat or drink in the wash-up area, but other staff ate and drank in the kitchen, at the counters and at the tills, without the managers objecting. He also claimed that only non-Irish staff members were assigned heavy work.
   6. The complainant said he had a particular problem with overtime. He said he was not permitted to refuse to work overtime, and when he attempted to do so, he was reminded it was part of his duties. While he worked at the university, it acted as both an accommodation centre and event venue for Special Olympics and overtime was frequently required. The complainant alleged that other staff members were allowed to refuse overtime, but he was not.
   7. The complainant said he complained to the respondent's Personnel Department, and his managers were angry that he had done so without talking to them. He said that he could not talk to them as they were discriminating against him. After his complainant, he said things briefly improved with everyone being obliged to wear uniforms and so on. However, the complainant said the improvement did not last, the bullying, harassment and discrimination started again, and he decided to terminate his employment.
      
3. SUMMARY OF THE RESPONDENT’S CASE
   1. The respondent denied all allegations of discrimination, bullying and harassment. It said it employed some 38 Catering Assistants during the relevant period, of whom 22 were non-Irish nationals, and that it had not received a complaint of this nature from any another staff member. It said that the complainant's job description and the restaurant's Hygiene Guidelines clearly specified the duties and requirements of a Catering Assistant. These were translated into Spanish, and a copy given to the complainant, to ensure he was fully conversant with hygiene procedures.
   2. The respondentsaid this policy expressly provided that uniform must be worn at all times. It said that any employee, irrespective of nationality, found not to be complying with this policy was told by supervisory staff to do so. The respondent accepted that there had been situations where staff members, including the complainant, breached the policy. It said numerous employees, both Irish and non-Irish, were frequently told by supervisory staff to wear their uniforms.
   3. The respondent said that, at the time of the incidents complained of, it did not have a formal policy regarding the provision of free soft drinks to members of staff. It said there was an informal understanding that they could take a reasonable number of soft drinks. It said that there was no discrimination against the complainant or any other wash-up staff members. The respondent said that all employees were generally forbidden from drinking at their work areas, for hygiene reasons, but during hot weather they were all, including the complainant, permitted to drink water.
   4. Regarding the controlling of food portions, the respondent said this applied to all members of staff regardless of nationality. As an example, the respondent said an employee was permitted to have tea/coffee, scone/croissant and jam and butter for the morning break. An employee attempting to have a full breakfast would be told not to do so. In relation to the extent of breaks, the respondent said that the relevant times were set down and regulated by the supervisory staff. In the event that any employee, regardless of nationality, exceed the allotted break time, s/he would be instructed to return to work. The complainant, along with Irish and non-Irish colleagues, exceeded his break time on numerous occasions and was so instructed. The respondent said the break times of chefs were separately set and regulated by the Head Chef.
   5. The respondent totally denied that non-Irish staff members were required to do all of the heavy work. It said work duties were allocated on the basis of grade, and that the complainant's duties were expressly outlined in his job description. It said all Catering Assistants, irrespective of nationality, received the same job description and were required to carry out the same duties. It also pointed out that the complainant, and a number of his non-Irish colleagues, were facilitated with time off to enable them to attend English-language tuition.
   6. The respondent said the complainant's terms and conditions of employment expressly stated that he would be required to work overtime on occasion. It said that certain events, such as conferrings, required compulsory overtime. In the event of exceptional circumstances, certain employees were exempted from working overtime. The respondent said that the majority of those so exempted had pressing childcare or other social needs.
   7. The respondent acknowledged that the complainant took his grievances regarding overtime to its Human Resources Department during the summer of 2003. It said the complainant was reminded of the terms of his contract. The complainant asserted that it was racist to make him work overtime, but he was told that the requirement applied Irish and non-Irish employees alike. The respondent denied that any change in practice occurred following the complainant's contact with Human Resources.
   8. The respondent concluded that the onus of proof was on the complainant to show that he was discriminated against on the ground of race. Since no evidence had been produced to substantiate the allegation, the respondent submitted that the claim must be rejected.
      
4. INVESTIGATION AND CONCLUSIONS OF THE EQUALITY OFFICER
   1. In reaching my conclusions in this case I have taken into account all of the submissions, both oral and written, made to me by the parties.
   2. The complainant alleged that the respondent discriminated against him on the ground of race contrary to the provisions of the Employment Equality Acts 1998 - 2004. Section 6 of the Acts provides that discrimination shall be taken to occur where one person is treated less favourably than another is, has been or would be treated, on one of the discriminatory grounds, including disability.
      
      Section8 provides that
      (1)In relation to-
      (b) conditions of employment...
      an employer shall not discriminate against an employee or prospective employee...
   3. In a recent claim of discrimination on the race ground (Citibank v Massinde Ntoko [Determination No EED045]), the Labour Court referred to its earlier decision inFlexo Computer Stationery Ltd and Kevin Coulter [EED0313] and said "Flexo…is but one of a line of decisions of this Court which held that where a complainant establishes facts from which discrimination may be inferred it is for the respondent to prove there has been no infringement of the principle of equal treatment. The Court normally requires the complainant to establish the primary facts upon which the assertion of discrimination is grounded." I am satisfied that the same procedural rule applies in this case, and it is for the complainant to establish the relevant facts.
   4. In essence the complainant's contention was that the regulations were selectively applied to him, and in certain cases to other non-Irish staff members. The respondent, on the other hand, asserted that the same terms and conditions applied to all employees, regardless of nationality.
   5. With its submission, the respondent attached a copy of the hygiene guidelines which stipulated the importance of staff wearing clean protective clothing. It also provided a copy of the complainant's contract of employment, which stated "You will be provided with a uniform which must be worn during working hours." The respondent submitted a copy of an internal memorandum circulated to all members of staff by the Commercial Manager (whose responsibilities included catering) in September 2002. Among other matters, this memorandum stated "The uniform including head covering must be worn at all times when on duty. Remember that you wear the uniform to protect the food and equipment from yourself rather than yourself from the food." Taking these documents into account, I am satisfied that the wearing of a uniform was a general requirement applicable to all staff members and that management had ongoing problems trying to implement the requirement. The complainant was unable to supply any evidence that he was the only staff member affected, or that only non-Irish staff were affected.
   6. The respondent's policy on soft drinks was somewhat confusing. It said it had an informal understanding that members of staff could take reasonable amounts of soft drinks, but this was never formally announced. It appears clear that this led to some staff members, who were aware of the informal understanding, taking soft drinks, while other staff members, who had never been formally told of this, were under the impression that they could only take water. However, both parties agreed that when the complainant raised the issue, the policy was clarified and all members of staff took reasonable amounts of soft drinks.
   7. Regarding the control of food portions, the respondent provided an Irish member of staff as a witness at the hearing, who gave evidence that she had been reminded on several occasions of the limits on the amount of food staff members were permitted to take. I accept as a general principle that the respondent needed to control costs in this manner, and the complainant did not have any evidence that the policy only applied to non-Irish employees. I also accept that environmental health regulations would oblige the respondent to require that staff members did not eat or drink at their work areas.
   8. The Commercial Manager's memorandum of September 2002 included the following:
      • Meal breaks
        A gentle reminder to those who may have forgotten the allowances.
        • Morning break 15 minutes
        • Lunch break 30 minutes
        • Evening break 20 minutes
        Again, this clearly applied to all members of staff. It is apparent that lapses occurred and employees had to be reminded not to exceed the allotted time. However, no evidence was supplied that such reminders were only given to the complainant, or to non-Irish staff members.
   9. The complainant's contract of employment clearly stated "You will be required to work 39 hours per week…It may be necessary to work outside these working hours in order to achieve objectives and meet deadlines." The complainant agreed at the hearing that he opted not to work overtime during April and May 2003 without being pressurised to do so. It would appear that the occasion of Special Olympics 2003 during June created extra pressure for the respondent to require the working of overtime. Clearly the complainant did not wish to do overtime, hence his complaint to Human Resources. Equally clearly, however, the Catering Assistant contract of employment anticipated that overtime would be required on occasion.
   10. The Labour Court considered the particular problems that may affect non-national workers in its decision inCampbell Catering Ltd and Aderonke Rasaq (Determination No EED048). That was a claim for unfair dismissal where the Court held that special procedures may be required to ensure non-national workers were not discriminated against in disciplinary procedures. The Court said "It is clear that many non-national workers encounter special difficulties in employment arising from a lack of knowledge concerning statutory and contractual employment rights together with differences in language and culture…Special measures may be necessary in the case of non-national workers to ensure this obligation is fulfilled…". In this instance, I note that the complainant was provided with a Spanish translation of the relevant documentation. I am satisfied, therefore, that he was aware of the relevant regulations and procedures.
   11. I accept that the complainant was unhappy about certain aspects of his employment, and felt he was being unfairly treated. Nevertheless, he was not in a position to provide any evidence that the policies he objected to were applied solely to him, or to non-Irish staff members only.
       
5. DECISION
   1. Based on the foregoing, I find that University College Dublin did not discriminate against Mr Joaquin Garcia Puga contrary to the provisions of the Employment Equality Acts 1998 - 2004.

Anne-Marie Lynch,
Equality Officer,
11 August 2004