Mr. Michael Clarke (Represented by Mr. Power instructed by the Equality Authority) vs Quinn Direct Insurance Company (Represented by Ms. Kimber B.L. instructed by Morgan McManus Solicitors)
1. DISPUTE
1.1 The dispute concerns a claim by the Equality Authority, on behalf of Mr. Michael Clarke, that he was subjected to discriminatory treatment and harassment on the grounds of race and religion in terms of Sections 6(1), 6(2)(e), 6(2)(h) and 32 of the Employment Equality Act, 1998 and contrary to the provisions of Section 8 of that Act which took the form of demotion, discriminatory imposition of the disciplinary process and racial and religious harassment. The Equality Authority, on behalf of the complainant, also alleges that he was subjected to victimisation within the meaning of Section 74(2) of the 1998 Act.
2. BACKGROUND
2.1 The complainant commenced employment with the respondent on 9th October, 2000. He was employed as a general operative with a view to starting an apprenticeship on 1st December, 2000. The complainant alleges that the failure to begin him on this apprenticeship was a demotion. He further alleges that he (a Catholic from the Republic of Ireland) was discriminated against and harassed on the grounds of race and religion by an insurance assessor, a Protestant from Northern Ireland, (hereinafter referred to as Mr. A) and that his work was undermined ultimately resulting in victimisation. The respondent has denied the allegations.
2.2 Consequently the complainant referred a complaint to the Director of Equality Investigations on 20th July, 2001 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 23rd September, 2002 for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Act. Following receipt of submissions from both parties a joint hearing took place on 17th June, 2004. Further additional information was received from the respondent on 9th July, 2004.
3. SUMMARY OF THE CLAIMANT'S SUBMISSION
3.1 According to the complainant he was employed as a workshop general operative with the respondent organisation. He claims that he was discriminated against on the grounds of religion and race. This discrimination took the form of demotion, the discriminatory imposition of disciplinary process, harassment, undermining of his work and victimisation. The complainant states that he is claiming discrimination contrary to Sections 6, 8 and 32 of the Employment Equality Act, 1998 on the grounds that he was less favourably treated than another is, has been or would be treated. The complainant submits that the respondent contravened Section 8(1) in discriminating in relation to conditions of employment and Section 8(6) in relation to the operation of the respondent's disciplinary measures. He also alleges that he was harassed and unlawfully victimised in contravention of Section 74 of the 1998 Act.
3.2 The complainant states that he commenced employment with the respondent as a general operative in its car repair workshop on 9th October, 2000 pending the beginning of a mechanics apprenticeship in December, 2000.
3.3 The complainant states that in December, 2000 he brought certain complaints to the attention of the Manager (Mr. Finlay) regarding the conduct and comments of the insurance assessor (hereinafter referred to as Mr. A), an employee in a managerial post. His complaint was that Mr. A was making his political beliefs loudly known in the workplace. According to the complainant these concerns were shared by other employees in the workshop. The complainant says that Mr. A had stated that he would not be working on 12th July as he would be marching and that in his spare time he was a member of the Territorial Army, which is the reserve army for the British Army. The complainant further states that Mr. A had wondered why the news, broadcast in the Irish language, was played in the workplace and he referred to it as a foreign language.
3.4 In the period before his apprenticeship the complainant states that he was primarily engaged in washing cars that had been involved in crashes, which was often difficult work. Despite the putative start of his apprenticeship on 1st December, 2000 the complainant states that he continued to wash cars and no complaints were made about the quality or rate of his work. According to the complainant the comments by Mr. A continued throughout December and at the staff Christmas dinner on 21st December Mr. A made remarks about his background and he referred to 'taigs' which is generally understood to be a derogatory term for Irish members of the Catholic faith. The complainant says that Mr. A made comments concerning his involvement with the British Army which he took to be threats.
3.5 The complainant states that in January, 2001 complaints were made about his work by Mr. A who also warned him against making any further complaints about his (Mr. A's) comments. According to the complainant Mr. A continually criticised his work and accused him of standing around doing nothing. The complainant states that he was dismissed on 23rd January, 2001 following a meeting between himself, Mr. A and the Human Resources Manager. The complainant says that he was told that his probation was over and that they had decided to let him go. In the following weeks the complainant had difficulty in getting paid his wages.
3.6 It is alleged that the actions of the respondent in failing to properly deal with the complaints in relation to Mr. A made by the complainant amounts to discrimination on the grounds of race and/or religion. It is further submitted that the race specific and/or religious specific actions of Mr. A constitute harassment of the complainant and that the actions of the respondent thereafter resulted in the complainant been treated differently in the workplace and no steps were taken to cease this different treatment or reverse its effects. It is submitted that the less favourable treatment began when the complainant voiced his objections to the conduct and comments of Mr. A. According to the complainant he was less favourably treated in the manner in which complaints were made against him, in the matter in which he was not permitted to proceed with his apprenticeship and in the manner in which he was treated by Mr. A which caused him distress. The complainant further submits that the above actions constitute victimisation in that he opposed, in good faith and by lawful means, actions unlawful under the 1998 Act. It is submitted that given the quality of the complainant's work when he first started with the respondent demonstrate that the complaints made against him were a mere pretext to attempt to justify the discriminatory action.
3.7 In support of his allegations the complainant relies on the comment of Browne-Wilkinson Lt. in Glasgow City Council v Zafar2 that racial discrimination "...present special problems of proof for complainants since those who discriminate on the grounds of race or gender do not in general advertise their prejudices: indeed they may not even be aware of them". He further relies on the comments of Neill LJ in King v Great Britain-China Centre3 in which he states, inter alia
"(2) It is important to bear in mind that it is unusual to find direct evidence of racial discrimination. Few employers would be prepared to admit such discrimination even to themselves. In some cases the discrimination will not be ill-intentioned but merely based on an assumption that 'he or she would not have fitted in'.
(3) The outcome of the case will therefore usually depend on what inferences it is proper to draw from the primary facts found by the tribunal. These inferences can include, in appropriate cases, any inferences that it is just and equitable to draw in accordance with section 62(2)(b) of the Act of 1976 from an evasive or equivalent reply to a questionnaire.
(3) Though there will be some cases where, for example, the nonselection of the applicant for a post or for promotion is clearly not on racial grounds, a finding of discrimination and a finding of a difference in race will often point to the possibility of racial discrimination. In such circumstances the tribunal will look to the employer for an explanation. If no explanation is then put forward or if the tribunal considers the explanation to be inadequate or unsatisfactory it will be legitimate for the tribunal to infer that the discrimination was on racial grounds".
The complainant notes that both these decisions were accepted by Quirke J. in Davis v DIT4. The complainant seeks appropriate remedies to cease the discrimination and the discriminatory practices pursued by the respondent. He also seeks compensation to redress the distress, discrimination and loss he has suffered.
4. SUMMARY OF THE RESPONDENT'S SUBMISSION
4.1 The respondent notes that this claim was referred to the Equality Tribunal on 20th July, 2001. Pursuant to the provisions of Section 77(5) of the Employment Equality Act, 1998 the respondent submits that the complainant is limited to alleged acts of discrimination that took place between 19th and 23rd January, 2001 this being the date on which the respondent informed the complainant that his employment was not being extended beyond his probation period. The respondent notes that the complainant makes vague allegations about the conduct and comments of Mr. A in December, 2000 including allegations of statements being made at the staff Christmas dinner on 21st December, 2000. It is the respondent's contention that all these allegations, which are denied, fall outside the period for which the complainant is entitled to seek redress under the Employment Equality Act, 1998.
4.2 The respondent notes that the complainant has made reference to complaints being made about his work in January, 2001. He has also alleged that Mr. A warned him against taking any further complaints regarding comments by Mr. A. While these allegations are denied the respondent states that they are not within the period of time for which the complainant is entitled to seek redress pursuant to the 1998 Act. According to the respondent the first occasion it was aware of the allegation by the complainant of sectarian remarks by Mr. A was on 7th February, 2001 when he (the complainant) attended at the respondent organisation seeking an unscheduled meeting. The respondent denies these allegations. The respondent further notes that the complainant has adduced no evidence of exceptional circumstances that prevented his claim from being referred within the time limit. According to the respondent the complainant's claim is statute barred and the Equality Tribunal has no jurisdiction to deal with it.
4.3 The respondent states that the complainant has instituted proceedings before the Labour Court alleging that his dismissal of 22nd January, 2001 was discriminatory dismissal in contravention of the provisions of the 1998 Act and this, the respondent submits, cannot be addressed by the Equality Tribunal.
4.4 The respondent denies the complainant's vague and unsubstantiated allegations of discriminatory comments and conduct on the part of Mr. A. The respondent further denies that the complainant brought his complaints to its attention. At no time, according to the respondent, did the complainant invoke the procedure available to him pursuant to the equal opportunities policy. It is the respondent's submission that there were difficulties with the quality of the complainant's work.
4.5 The respondent denies that the complainant was not permitted to proceed with his apprenticeship as alleged or at all. According to the respondent the complainant was originally suppose to start his employment as an apprentice but deferred of his own volition to do so as it would have involved lesser wages. The respondent states that the complainant arranged to postpone his apprenticeship to give him an opportunity to save money. It is the respondent's contention that the deferment of the apprenticeship was the complainant's own decision and it did not contribute to it in any way.
4.6 The respondent relies on Section 15(3) of the Employment Equality Act, 1998 and says that it had a policy which set down a procedure available to any employee who wishes to make a complaint about the conduct of another employee. According to the respondent the complainant did not choose to avail of the procedures set out in that policy and the respondent denies that the complainant made complaints about the manner in which he alleges he was treated by the trainee insurance assessor in the course of his employment.
4.7 In relation to the allegation of victimisation the respondent denies that the complainant ever voiced any objections to the comments and conduct of Mr. A or that he ever opposed anything that was unlawful under the 1998 Act. Given these circumstances the respondent does not accept that the complainant has any claims of victimisation pursuant to the provisions of the Act.
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 The issue for decision in this claim is whether or not the complainant was discriminated against and harassed on the grounds of race and religion in terms of Section 6, 8 and 32 of the Employment Equality Act, 1998. It is also necessary to decide the issue of whether or not the complainant was subjected to victimisation within the meaning of Section 74(2) of the 1998 Act. In making my decision in this claim I have taken into account all of the information, both written and oral, made to me by the parties.
5.2 The complainant has alleged that he was subjected to discriminatory treatment, harassment and victimisation by the respondent due to the fact that he was not made an apprentice as had been promised, he was subjected to racial and religious comments by Mr. A and he was victimised when he complained about the alleged comments. This took the form of undermining his work.
5.3 The parties are in conflict as to why the complainant did not commence his apprenticeship. According to the complainant he commenced employment with the respondent organisation as a general operative with the understanding that he would start his apprenticeship on 1st December, 2000. The complainant accepts that he wanted to commence employment as a general operative as he wanted to earn some money because as an apprentice he would be paid less. The complainant states that Mr. Finlay the acting manager asked him to hold off starting his apprenticeship until after Christmas because of the workload in the workshop at the time. I note that the complainant has stated that it was his opinion that Mr. Finlay held the position of acting manager of the workshop. From the respondent's perspective the complainant commenced employment as a general operative at his own request but the Human Resource Manager did speak with the complainant in the reception area of the respondent organisation and she says that she encouraged the complainant to commence his apprenticeship because, even though the pay was less it was only less in the short-term. It is clear from the evidence that the complainant was recruited as an apprentice but did not want to start his apprenticeship immediately. There is no evidence that he was told that it would start on 1st December, 2000 and it is clear that the Human Resource Manager expected the complainant to revert to management when he wished to commence his apprenticeship.
5.4 The complainant regarded Mr. Finlay as acting manager of the workshop. However, as outlined in my Decision in the case of Mr. Finlay v Quinn Direct Insurances Limited5, the complainant is the only employee of the workshop who considered that Mr. Finlay held the position of acting manager. According to two former employees who attended the hearing, on behalf of the respondent, and the Secretary in the workshop it was announced that Mr. A was taking over the position of acting manager of the workshop and these people stated that they reported to Mr. A (and not Mr. Finlay) on all relevant matters. In my decision in the Finlay case I have held that Mr. Finlay was not the acting manager of the workshop and I find that the complainant's view of Mr. Finlay's role was misplaced. If the complainant was anxious to pursue his apprenticeship he could have pursued it with the Human Resource Manager especially as Mr. Finlay was not following through on it. I am satisfied that there is no evidence to support the contention that the complainant was treated less favourably than another in this matter.
5.5 The complainant has alleged that he was discriminated against and harassed when he was subjected to racial and religious comments by Mr. A in the course of his employment and at a Christmas party. The respondent has emphatically denied these allegations. I have examined these allegations and note that there are no witnesses to any of these allegations with the exception of Mr. Finlay on some occasions. In a document given to me on the day of the hearing (and which accompanied a referral of a dismissal claim to the Labour Court) I note that the complainant has stated that there were some witnesses to the discriminatory treatment and harassment at the Christmas party. However I note that none of these alleged witnesses have confirmed the allegations to me. This particular document sets out detailed allegations of a continuous nature and I find it difficult to understand that there are no witnesses either in the workshop or at the Christmas party who overheard the comments. On the balance of probabilities I find that the complainant has failed to establish a prima facie claim of discriminatory treatment and harassment.
5.6 The complainant has alleged that he was victimised for complaining about the behaviour of Mr. A and that this victimisation took the form of undermining his work. The complainant has alleged that he complained about Mr. A's behaviour to Mr. Finlay who he said was acting manager. I am satisfied that the complainant had no reason to believe that Mr. Finlay was acting manager. The complainant has said that Mr. Finlay raised his complaint with the General Manager in early December, 2000. The respondent has denied this and the complainant was not present to confirm that Mr. Finlay did indeed raise the matter with the General Manager. There is no evidence therefore that the complainant made a complaint to management about Mr. A. There is evidence from the two former employees that the complainant did not perform well in his work and was often just standing around not doing any work. The complainant alleged that he was required to clean out a car which had been involved in a fatal accident. It was his contention that it was a Primera. According to records produced by the respondent only one car (a Peugeot 306) involved in a fatal accident had come to the workshop during the complainant's employment there and the complainant was not recorded as having worked on that car. The respondent produced records of three Primera cars which had been in the workshop during the period of the complainant's employment there. None of them were involved in a fatal accident and the complainant had only worked on one of them which had a side panel replaced. I find that the evidence does not support the contention that the complainant was victimised by the respondent.
5.7 In its submission the respondent has argued that I have no jurisdiction to investigate this claim as it is statute barred (see paragraphs 4.1 and 4.2 above). Section 77(5) of the Employment Equality Act, 1998 states as follows:
"Subject to subsection (6) a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of the occurrence or, as the case may require, the most recent occurrence of the act of discrimination or victimisation to which the case relates".
The claim in this case was referred on 20th July, 2001 and, according to the complainant, the most recent occurrence of a discriminatory act occurred on 23rd January, 2001 while the first occurrence of a discriminatory act was in October, 2000. In view of the conclusion I have reached on the substance (see paragraph 5.5 above) following a full hearing of this claim it is not necessary for me to deal with the time limit issue.
6. DECISION
6.1 In view of the foregoing I find that Quinn Direct Insurance Company did not subject Mr. Michael Clarke to discrimination, harassment or victimisation in terms of Sections 6, 32 and 74(2) of the Employment Equality Act, 1998 and contrary to the provisions of Section 8 of that Act.
______________________
Gerardine Coyle
Equality Officer
17th September, 2004
2 UK [1998] 2 All E.R. 953 at p. 958
3 UK [1992] I.C.R. 516 at 528-529
4 Unreported, High Court, 23rd June, 2000
5 Equality Officer Decision - DEC-E-2004-055