Sanni
(represented by the Equality Authority)
-v-
Tesco Ireland
(represented by William Fry Solicitors)
1. CLAIM
1.1 The case concerns a claim by Mr. Quadri Abayomi Sanni that Tesco Ireland, Dublin, directly discriminated against him on the race ground in terms of section 6(2)(h) of the Employment Equality Act, 1998 and in contravention of section 8 of the Act in the selection process for appointment to the permanent post of Warehouse Operative. The complainant also alleges that he was victimised within the meaning of section 74(2) of the Act.
2. BACKGROUND
2.1 On 15 October 2003, the complainant was interviewed for a permanent position as a Warehouse Operative. He was not successful and submits that he was discriminated against on the race ground. He also submits that he was victimised in that he was called for interview for the post only after he forwarded a Tribunal form (ODEI 5) to the respondent which indicated that he intended to refer a complaint to the Tribunal. The respondent rejects the allegation of discrimination and victimisation and submits that the reason that the complainant was not offered the position was due to his poor performance in his temporary position as a warehouse operative and his poor performance at interview.
2.2 The complainant referred a complaint under the Employment Equality Act 1998 to the Director of Equality Investigations on 21 November 2003. On 3 February 2006, in accordance with her powers under section 75 of that Act, the Director delegated the case to Mary Rogerson, 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. The case had previously been assigned to another Equality Officer. A submission was received from the complainant on 17 October 2005. A submission was received from the respondent on 2 February 2006. A joint hearing of the claim was held on 11 May 2006.
3. SUMMARY OF THE COMPLAINANT'S SUBMISSION
3.1 The complainant alleges discrimination by the respondent on the grounds of race in relation to a failure to appoint him to a permanent position as a Warehouse Operative contrary to section 8 of the Employment Equality Act 1998. The complainant commenced employment with the respondent in April 2003. He was employed by the respondent through an employment agency called Pertemp Job Shop. His duties were mainly to pick orders from the shelves. He had been working for a number of months when he realised that various people including agency employees were being employed by the respondent as permanent employees. He approached Mr. Mc C, the night shift manager on a number of occasions asking if he could be permanently employed by the respondent. He was informed that he should continue working, keep his head down and something would be sorted out for him. He did what was asked of him but he was still not considered for a permanent job.
3.2 The complainant then approached Mr. Mc D, the new shift manager to ask him why he was not getting a permanent job. Around mid September 2003, he was informed that he would not get a permanent job because he was not an Irish nor was he a citizen of a EU Member State. As a result, the complainant subsequently showed Mr. McD his residency card together with an explanatory letter from the Department of Justice confirming his right to work without a work permit. Around the end of September, the complainant sent a Form ODEI5 to the respondent setting out his claim and his intention to refer a case to the Tribunal. Whilst it is accepted that this was the notification form under the Equal Status Act and did not refer specifically to the Employment Equality Act, it was clear from the content that the complainant was alleging discrimination on the race ground in relation to his employment.
3.3 Approximately, two weeks later, the complainant was called for interview. He got the distinct impression at the interview that it was only being held because he had made the complaint. He was told at the interview that he would be informed in writing as to the outcome. Two weeks later, the complainant was informed at a meeting with the HR Manager and the day shift Manager that he was unsuccessful. He was told that there were problems with his attendance, his punctuality and his productivity. Prior to this, the complainant had not received any complaint from the night shift manager in relation to his work.
3.4 The complainant continued working with the respondent until 12 November 2003 when he was called in by the agency and was told that the respondent no longer wanted him working there. He was not given any information by either the agency or the respondent as to why he was being dismissed. He had never received any complaints either from the agency or from the respondent with regard to his work except in the meeting that was held subsequent to his interview.
3.5 The complainant was treated less favourably by the respondent in its refusal to consider him for permanent employment despite the fact that he was eligible. He was asked to attend an interview for a job which he was subsequently told did not exist and criticised in relation to his work performance despite the fact that no evidence was produced to substantiate the allegations and he was subsequently dismissed.
4. SUMMARY OF THE RESPONDENT'S SUBMISSION
4.1 The complainant was employed through the Jobs @Pertemps Ireland Agency from 13 March 2003 until 16 November 2003 as a temporary warehouse operative in the respondent's distribution centre at Greenhills Road. As such, the complainant was never employed by the respondent and he was an employee of the agency. His employer, Jobs @ Pertemps paid him his weekly wages.
4.2 Permanent vacancies are not filled from agency staff without the requisite selection process in advance. Length of service as a temporary agency worker does not give any one individual priority over another in terms of being successful in a permanent capacity. Rather, the outcome of the interview in addition to factors such as attendance/absence, pick rates, clocking in/out, time keeping and general attitude on the job are important.
4.3 The complainant approached Mr. McC who was then the Night Crew Manager for the period between May 2003 and September 2003. He was advised by Mr. Mc C to continue working as he was and an opportunity may arise. Subsequently, the complainant approached the new Night Crew Manager Mr. Mc D seeking permanent employment. The complainant's view was that as he had completed 13 weeks working with the respondent, he was automatically entitled to a permanent job. Mr. McD's recollection is that the complainant was on sick leave/absent during part of the Christmas recruitment drive in September 2003, however, on his return, he was immediately interviewed by the Personnel and Training Executive and the Operations Manager. There were also four other applicants for two permanent positions. Mr. Mc D concedes that he originally misunderstood the Stamp 4 status that the complainant held but later sought advice from his HR team who clarified the complainant's status as eligible to work legally in Ireland.
4.4 On 15 October 2003, the complainant was interviewed for a permanent position with the respondent. On 21 October 2003 along with other candidates, he was sent confirmation in writing that he was unsuccessful at interview. On 29 October 2003, the complainant was given constructive feedback in person in relation to the selection process. The interviewers pointed out to him that the following factors were considered:
* Negative body language
* His answers were brief and lacked detail
* He was ten minutes late for the interview with no excuse
* He needed improvement in relation to swipes, attendance and time keeping, performance and attitude.
The feedback from the night shift management was not positive in relation to the complainant. Post his interview feedback, his general attitude on the job showed no sustainable improvement.
4.5 Approaching the months of November/December 2003, the respondent had a requirement for fewer agency staff. The agency staff working for the respondent experienced reduced working hours and consequently, not all of the agency staff working at the respondent were required and this was communicated to the agency. Ms. M informed the agency that the respondent needed to cancel/cut agency staff. The complainant was one of the agency workers selected and the complainant ceased working for the respondent on 16 November 2003.
4.6 The complainant was not offered a permanent position due to his poor performance at interview. The respondent strongly denies the claim that the complainant was discriminated against on the grounds of race in relation to access to employment. The respondent recruits staff who meet the criteria of overall performance on the job and performance during a selection process.
4.7 The respondent submits that it was not the complainant's employer. Therefore, it cannot be held liable for the complainant's dismissal. The employment agency paid him his wages and managed the employment relationship with him in all respects. As with all agency staff who work with the respondent, it is up to the agency to performance manage their own employees as and when required and not the respondent.
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 In this case, the complainant alleges that the respondent directly discriminated against him on the race ground in relation to access to employment. I will therefore consider whether the respondent directly discriminated against the complainant on the race ground in terms of section 6(2) (h) of the Employment Equality Act, 1998 and in contravention of section 8 of the Act. I must also consider whether the complainant was victimised within the meaning of section 74(2) of the Act. In making my Decision in this case, I have taken into account all of the evidence, both written and oral, submitted to me by the parties.
5.2 Before proceeding to consider the issue of the burden of proof, I must first consider the status of the named respondent in relation to the claim. At the hearing, the complainant submitted that he was employed by an agency and the respondent also submitted that the complainant was employed through the Jobs@Pertemps Ireland Agency and that the agency paid him his weekly wages. Section 2 of the Act defines Employer as meaning "in relation to an employee, the person with whom the employee has entered into or for whom the employee works under (or, where the employment has ceased, entered into or worked under) a contract of employment;
Section 2(5) of the Employment Equality Act, 1998 provides that "A person who, under a contract with an employment agency, within the meaning of the Employment Agency Act, 1971, obtains the services of one or more agency workers but is not their employer for the purposes of this Act is in this Act referred to, in relation to the agency workers, as the "provider of agency work".
Section 8 of the Act provides that a provider of agency work, in this case, namely the respondent, shall not discriminate against an agency worker, inter alia, in relation to access to employment.
The provisions of the Employment Equality Act, 1998
5.3 Section 6(1) of the Employment Equality Act, 1998 provides that:
"Discrimination shall be taken to occur where, on any of the grounds mentioned in subsection (2) (in this Act referred to as "the discriminatory grounds"), one person is treated less favourably than another is, has been or would be treated."
Section 6(2) provides that as between any two persons, the discriminatory grounds are, inter alia:
(h) that they are of different race, colour, nationality or ethnic or national origins (in this Act referred to as "the ground of race"),.
Establishing a prima facie case
5.4 The Labour Court in the case of The Southern Health Board v. Dr. Teresa Mitchell (1) considered the extent of the evidential burden which a claimant must discharge before a prima facie case of discrimination on grounds of sex can be made out. It stated that the claimant must:
".... "establish facts" from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination. It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there was no infringement of the principle of equal treatment."
The Labour Court went on to hold that a prima facie case of discrimination is established if the complainant succeeds in discharging that evidential burden. If the complainant succeeds, the respondent must prove that s/he was not discriminated against on grounds of their sex. If the complainant does not discharge the evidential burden, the claim cannot succeed.
5.5 Subsequently, the Labour Court stated in relation to the burden of proof in an age discrimination case that:
"It is now established in the jurisprudence of this court that in all cases of alleged discrimination a procedural rule for the shifting of the probative burden similar to that contained in the European Communities (Burden of Proof in Gender Discrimination Cases) Regulations 2001 (S.I. No. 337 of 2001) should be applied. The test for determining when the burden of proof shifts is that formulated by this Court in Mitchell v. Southern Health Board [2001] ELR201. This places the evidential burden on the complainant to establish the primary facts on which they rely and to satisfy the Court that those facts are of sufficient significance to raise an inference of discrimination. If these two limbs of the test are satisfied the onus shifts to the respondent to prove that the principle of equal treatment was not infringed." (2)
More recently, the Court stated in a case which concerned discrimination on the race and religion grounds:
". ....... the Court is satisfied a rule requiring the shifting of the probative burden to the respondent where the complainant makes out a prima facie case is applicable in the instant case." (3)
Issue of whether the complainant has established a prima facie case of discrimination
5.6 I will proceed to consider the issue of whether the complainant has established a prima facie case of direct discrimination on the race ground. In accordance with the principles established in the Mitchell (4) case and reiterated in the Flexo (5) and Icon (6) cases, I must consider whether the complainant has established the primary facts on which he relies and secondly, if he has established the primary facts, I must consider whether those facts are of sufficient significance to raise an inference of discrimination. If these two limbs of the test are satisfied, the onus shifts to the respondent to prove that the principle of equal treatment was not infringed.
5.7 In this case, interviews were held for two permanent positions as Warehouse Operator. The respondent submitted at the hearing that over thirty people were interviewed in September/October 2003 by interview boards constituted by different people. I note that this differs to the respondent's written submission which states "The Complainant underwent the selection process with 4 others...." The respondent provided the papers in respect of four applicants inclusive of the complainant who were interviewed on various different dates in and around that time; 25 September 2003, 1 October 2003 and on 15 October 2003 (the complainant). The date of one candidate's interview is not known as his marking sheet is unavailable. The respondent submitted that the candidate in question who was successful in the interview process was subsequently dismissed and the marking sheet may have been misplaced when the company was going through the disciplinary process with him. All candidates were marked according to a standard marking sheet under the headings of Communication, Teamwork, Adaptability, Warehouse Experience and Motivation/Flexibility. The range of marks that could be awarded under each category was 1-5. It was submitted at the hearing that the two interviewers on each board consulted after the interview and then agreed a marking in respect of each heading. The complainant received a total of eleven marks out of twenty five and the other unsuccessful candidate received seventeen marks. One of the successful candidates received twenty marks and the other successful candidate received nineteen marks. The notes under the heading of 'Motivation/Flexibility' in respect of the complainant state "Did not try to sell himself. Did not seem v. keen or enthusiastic to secure a position. Wants to work nights because of family commitments." The notes at the end of the complainant's marking sheet state " 10 minutes late for interview. Did not try or seemed very laid back. Decline on IV." I note that in the notes of the feedback meeting on 29 October 2003, it is recorded by the respondent that the complainant stated "Shift manager told me I would not be getting a job so I am frustrated at interview."
5.8 The respondent submitted that it advertised in the canteen in relation to the post. The complainant submitted that he did not see the advertisement but had sent in his CV for a permanent post in the early months after joining the company. The advertisement states in relation to the role that "Pick accuracy is paramount within this function along with a commitment towards Health & Safety." Whilst some of the criteria listed in the Personal Profile in the advertisement for the post were assessed at interview, the assessment criteria do not match the criteria in the personal profile, in particular, the personal profile does not refer to 'Communication' or 'Teamwork' as being important. Evidence was given at the hearing that an aptitude test was completed prior to interview by all candidates. If a candidate did not pass the aptitude test in basic literacy and numeracy, s/he would not be called for interview. The complainant submitted that he completed his aptitude test immediately before his interview. The respondent submitted that he was in fact ten minutes late for interview.
5.9 The respondent submitted that factors such as the complainant's performance on the job, general attitude, pick rate and his performance at interview were the factors resulting in him not being successful in gaining a permanent post as a warehouse operative. It was submitted by the respondent that the interview board would have been aware of candidates' work performance as the performance reports are available on the system. One of the interviewers who interviewed the complainant gave evidence that he knew of the complainant's under performance prior to the interview but he did not know who informed him. He submitted that it may have been the HR person who was on the interview board with him. The respondent submitted that the complainant would have been told by his section manager prior to the interview that there was an issue in relation to his performance; however, that person was not present at the hearing to give evidence. It also submitted that the issue in relation to the complainant's performance would have been communicated to the agency whose responsibility it was as the complainant's employer to deal with it.
5.10 The respondent presented daily reports for the complainant's performance on 23 September 2003, 25 September 2003, 26 September 2003 and 27 September 2003. These reports in addition to showing that the complainant did not clock in or out for any of his breaks on those dates shows that he had pick rates of 697, 911, 883 and 818 on the days in question. The respondent submitted that it was expected that employees would have a pick rate of at least 800 per day and that the average pick rate at the moment per day is 1200/1300. On the face of these reports, it appears that the complainant was not achieving in the higher scale of pick rates. Any issue of underperformance in terms of pick rates, attendance and swiping was denied by the complainant. He submitted that the documentation submitted was specifically chosen to show him in the worst possible light and he submits that his pick rates were almost always above average. He submitted that pick rates on a particular night could be affected by many matters including machine error, attendance at weekly meetings, by being asked to undertake other tasks and being checked in the quality of work by the trainee managers. The respondent submitted that weekly meetings are rare for agency personnel and also submitted that if the complainant had swiped correctly with a "meeting card", then it would have been taken into account in the respondent's data. It also submitted that when the complainant was requested to undertake different tasks such as cleaning, it was taken into account when the operator swiped with the appropriate card. Indeed, it submitted that data furnished by it shows that the complainant swiped for two hours cleaning on 25 October 2003. The documentation submitted by the respondent clearly shows that the complainant did not clock out for breaks. I am unable to make a finding in relation to whether the complainant was informed of issues with his performance by the respondent in its capacity as the provider of agency work and not as his employer prior to interview as the respondent submitted that the complainant's section manager would have spoken to him, however, no direct evidence was given by the manager in question.
5.11 The notes for one of the successful candidates (Candidate B who was Irish) in respect of the criterion 'Motivation/Flexibility' state "Maintaining present work rate and attitude - v good employee, v good attendance, v good timekeeping." and he received a mark of 5 under that criterion. It is clear therefore, that the performance of one of the successful candidate's who was Irish was taken into account at interview. It is also clear from the notes in respect of the other unsuccessful candidate who was from Cameroon that his performance was also taken into account at interview. The notes in respect of that candidate state "Self starter works by himself. Very good at his job." I note that the comments on Candidate B's marking sheet states under 'Teamwork' "Likes to work by himself to finish, we have never had to talk to Mark" He received four marks under this heading. I note that the complainant only received two marks for teamwork and one of the comments under that heading states "Last team based job was in Nigeria in 1996." There appears to be an inconsistency in markings under the heading of 'Teamwork' for the complainant and one of the successful candidates. However, I note that that successful candidate's interview was undertaken by a different interview board to the complainant's board. Indeed, the interview summary sheets for the two candidates referred to are signed by one person only whereas the complainant's interview summary sheet was signed by two people. Candidates were not told prior to the interviews that their performance in their temporary agency role would be taken into account in determining their success in the competition. Additionally, candidates were not formally assessed under this heading in the interview process, thereby allowing the respondent an element of subjectivity in the selection of successful candidates.
5.12 I consider that performance on the job as a temporary worker was taken into account in an ad hoc and unfair manner in respect of all candidates. I consider that it would have been more prudent for the respondent and fairer to all candidates to have a formal assessment carried out by their line managers which could then be taken into account in a transparent manner by the various interview boards. It would also have been fairer to all of the candidates to indicate to them in the job advertisement that their previous performance in their temporary roles would be taken into account. In relation to the inconsistencies in the comments and marks made in respect of the various candidates, I consider that this may have been attributable to the approaches taken by the different interview boards and would have had implications for all candidates. It appears to me that any issues with the complainant's performance were taken into account in a non transparent manner in the markings given to him in the interview and this may have been one of the factors that led to him being unsuccessful at the interview stage. However, he was not treated any differently to the other candidates in relation to this matter. In the notes of the feedback meeting which were not disputed by the complainant, he himself seems to have acknowledged that he was frustrated at interview. I note from data presented by the respondent that in 2003 after the competition in issue, eleven out of thirty eight permanent night crew staff were from Nigeria and another two are classified as being African. On the balance of probabilities, I find that the complainant has failed to establish a prima facie case of discrimination on the race ground in relation to his application for the post of permanent warehouse operative.
Victimisation
5.13 The complainant also submits that he was victimised within the meaning of section 74(2) of the Act which provides, inter alia, that victimisation occurs where the dismissal or other penalisation of the complainant was solely or mainly occasioned by the complainant having, in good faith -
"(b) opposed by lawful means an act which is unlawful under this Act or which was unlawful under any such repealed enactment,"
The first issue for consideration by me is whether the complainant in the present case has established a prima facie case of victimisation. I must therefore consider whether the complainant has adduced evidence to show that he was penalised and secondly, whether the evidence indicates that the penalisation was solely or mainly occasioned by the complainant having in good faith opposed by lawful means an act which is unlawful under the Employment Equality Act, 1998.
5.14 The complainant first referred a claim of discrimination to the Equality Tribunal on 11 November 2003 albeit he used the incorrect referral form (ODEI.2 for referral of claims under the Equal Status Acts). He submits that he also sent the ODEI5 form (Equal Status Notification form) to the respondent in or around the end of September, beginning of October 2003. A copy of the ODEI5 provided by the complainant is dated 29 September. The complainant provided a registered postal slip indicating that a letter was sent to the respondent on 01 October 2003. The respondent submitted that it did not receive the form from the complainant. The respondent did not submit that it received another piece of correspondence from the complainant rather than the ODEI5 form at that time. In the normal course of events, one would expect that a document sent by registered post would have been received and in the absence of any contradictory evidence from the respondent, I accept that the ODEI 5 form was sent by the complainant to the respondent indicating that he was alleging discrimination in relation to his employment.
5.15 Approximately two weeks later, the complainant was called for interview. He believes he was only interviewed because he had made a complaint and that he later had a conversation with the Human Resources Manager who told him that there were no jobs available. The respondent submitted that the complainant was on sick leave/absent during part of the Christmas recruitment drive in September 2003, however, on his return, he was immediately interviewed by the Personnel and Training Executive and the Operations Manager. I note from a medical certificate provided by the complainant that he was actually ill on 29 September 2003. He submitted that he took only two days sick leave. He would therefore have returned to work on 1 or 2 October 2003 and he was interviewed on 15 October 2003. It does not appear therefore that he was immediately interviewed on his return to work. I note that one of the successful candidates actually commenced employment on 6 October 2003 which was prior to the complainant's interview. The respondent by letter dated 26 May 2006 indicated that three people were successful and the commencement dates for the persons in question were all before the complainant's interview on 15 October 2003. The respondent also submitted that the complainant was the last individual interviewed for the post of permanent warehouse operative and that no one was recruited after 6 October 2003 given that no one met the appropriate requirements. I am not satisfied that the complainant was interviewed in the normal course of events and at the time he was in fact interviewed that there was a vacancy for a permanent warehouse operative. In this regard, I have noted the respondent's submission that it would have liked to recruit another two permanent employees at that time if individuals had been suitable, however, no evidence of any attempt at external recruitment was presented.
5.16 The complainant submits that approximately two weeks after the interview, he was called into the office by the Human Resources Manager and the Day Shift Manager
and told that his interview was unsuccessful. He was told that there were problems with his attendance, his punctuality and his productivity. He submitted that he had not previously received any complaints either from the agency or from the respondent with regard to his work. As stated at paragraph 5.10 above, the respondent submitted four work reports for the complainant on various dates in September. These reports indicate that the complainant did not clock out for breaks and that there were issues with his pick rates on the dates in question. Any issue with the complainant's pick rates was strongly denied by him and he submitted that this pick rates were almost always above average.
5.17 The complainant submitted that he did not receive a letter dated 21 October 2003 indicating that he was unsuccessful at interview. The respondent indicated that it sent the letter by registered post but it was unable to provide a postal registration certificate. The complainant was given feedback in relation to his interview on 29 October 2003 and the notes taken by the respondent at that meeting indicate that the complainant stated that he did not receive a letter from the company. That feedback indicated that the complainant would be monitored over the next four weeks in relation to improved performance, 100% attendance and timekeeping, 100% swiping for breaks and general improvement in attitude. Whilst the targets set for the complainant were very high, the steps that would be taken at the end of the four week period if the standards set were not achieved were not recorded.
5.18 On the balance of probabilities, I find that the complainant was victimised within the meaning of section 74(2) of the Employment Equality Act, 1998 by interviewing the complainant for the post of permanent warehouse operative which had already been filled and by the high targets set at the feedback meeting and the failure to set out the repercussions for failure to meet the targets.
5.19 In considering redress for victimisation, I have considered that any award must be dissuasive and that victimisation is totally unacceptable as it has the potential to undermine the effectiveness of the equality legislation.
8. DECISION
8.1 On the basis of the foregoing, I find that the respondent did not discriminate against the complainant on the race ground in terms of section 6(2)(h) of the Employment Equality Act, 1998 contrary to section 8 and 32 of the Act in relation to the failure to appoint him to the post of permanent warehouse operative.
8.2 On the basis of the foregoing, I also find that the respondent victimised the complainant in terms of section 74 of the Employment Equality Act, 1998.
8.3 In accordance with section 82 of the Act, I hereby order that the respondent:
(iii) pay to the complainant the sum of €8,000.00 compensation in respect of the acts of victimisation (This award relates to compensation for distress and breach of rights under the 1998 Act and does not contain any element of lost income);
__________________
Mary Rogerson
Equality Officer
1 August 2006
notes
(1) DEE011 15 February 2001
(2) Flexo Computer Stationery Limited v. Kevin Coulter EED0313 9 October 2003
(3) Icon Clinical Research Limited v. Djemma Tsourova Determination No. EED054 11 March 2005
(4) DEE011 15 February 2001
(5) EED0313 9 October 2003
(6) EED054 11 March 2005