DEC-E2008-038 - Full Case Report

DEC-E2008-038

A Worker
-v-
An Engineering Company

Claim

 1.1.       The case concerns a claim by Mr C. that an Engineering Company discriminated against him on the ground of race contrary to Section 6(2)(h)  of the Employment Equality Acts 1998 to 2004, in permitting continuous harassment of him by co-workers contrary to S. 14A(7) of the Acts, denial of access to training contrary to S. 8(1)(c) of the Acts, and by discriminatorily dismissing him,  contrary to S. 8(6) of the Acts, because he was British.

Background

2.1.       The complainant, who was employed as a pipe fitter, claims that he was constantly subjected to harassing remarks by other members of his work team because of being English, and that he was dismissed for the same reason when numbers in the work team had to be reduced, in violation of the last-in-first-out principle. The complainant further submits that he was denied access to training on one occasion.

2.2.       The respondent rejects the complaint. It states that the harassing behaviour did not take place, that no notice of such behaviour was brought to its attention, and that the complainant was selected for redundancy according to the last-in-first-out principle.

2.3.       The complainant referred a complaint under the Employment Equality Acts 1998 to 2004 to the Director of the Equality Tribunal on 12 July 2006.  On 5 October 2007, in accordance with her powers under S. 75 of the Acts, the Director delegated the case to Stephen Bonnlander, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts.  A submission was received from the complainant on 15 February 2007.  A submission was received from the respondent on 21 January 2008.  A joint hearing of the claim was held on 3 June 2008. The last piece of correspondence relating to the complaint was received on 16 June 2008.

Summary of the Complainant’s Written Submission

3.1.       The complainant submits that he commenced working for the respondent on or about the 24^th of April, 2006.  He was recruited to work on a site of a client of the respondent’s in the vicinity of Dublin as part of a commissioning crew.  He claims it was indicated to him that his employ could last 12 months or possibly longer.

3.2.       The complainant states that he worked as part of a crew of six, later of ten.  He states that from early on, he was subjected to constant verbal abuse due to the fact that he was English.  He states that the abuse got so bad that he felt unable to take his lunch in the canteen and instead would eat lunch in his car.  He further states that his supervisor never spoke to him directly except one day before he was dismissed.

3.3.       The complainant submits that he applied to go on a course, but was told instead that he was being made redundant.

3.4.       The complainant submits that when his supervisor returned from his holidays, he announced the need for redundancies in the crew, and that these would be handled by the last-in-first-out principle.  He goes on to state that one named co-worker requested that “the Brit should be sacked and an Irish man should not be let go”.  The complainant states that when he approached his supervisor to enquire about training that had been discussed earlier, he was told he was let go, and told to leave work immediately.

Summary of the Respondent’s Written Submission

4.1.       The respondent rejects the complainant’s complaint.  It submits that it employed the complainant from April to June 2006, and that at no time did it give a guarantee to the complainant of 12 months’ work or more.

4.2.       The respondent submits that the complainant worked as part of a commissioning crew.  It goes on to state that The complainant was selected for redundancy because he had less service than other workers on the site, and that the last-in-first-out principle was followed.

4.3.       With regard to the complainant’s allegation of harassment, the respondent submits that the complainant’s supervisor strongly rejects that discriminatory behaviour took place, and that at no time did the complainant make a complaint to the site management or the respondent’s human resource department about such behaviour.

Conclusions of the Equality Officer

5.1.       The issues for me to decide in this case are whether the complainant’s treatment by his work colleagues amounts to harassment contrary to S. 14A(7) of the Acts; whether the respondent has a viable defence against a claim of harassment pursuant to S. 14A(2) of the Acts; whether the fact that the complainant was not permitted to go on a training course by reason of redundancy amounts to discriminatory treatment contrary to S. 8(1)(c) of the Acts; and whether the termination of the complainant’s employment amounts to discriminatory dismissal on grounds of race contrary to S. 8(6)(h) of the Acts.

5.2.       The complainant stated in oral evidence that the harassment he was subjected to consisted of name-calling, laughter and sniggering.  The complainant further stated that during team briefings in the morning his work colleagues would suggest, in respect of a worker entering tanks and other dangerous spaces, to “send the Brit in, then it will be clear to go in”.

5.3.       The complainant further stated that the crew would gather around him, jump like a football crowd, and singing anti-British Irish rebel songs, of which he remembered one: The Devil is dead and buried in Killarney/More say he rose again and joined the British Army.

5.4.       The complainant stated that a fortnight after starting on the site, he took to have lunch in his car, as he felt the banter in the canteen was directed against him.  He stated that whatever happened in England and was reported in the papers, such as negative news about the nuclear plant in Sellafield, or the performance of the English football team during the World Cup in Germany, was read out aloud in a manner that made him feel it was directed at him.

5.5.       He further stated that some of his work colleagues never spoke to him and never used his name, while others on the crew did talk to him.  The complainant stated that he felt intimidated and alone.  He also described his supervisor, Mr B., as “intimidating”.

5.6.       In cross-examination by the representative of the respondent, the complainant stated that he felt he could not complain to his immediate supervisor, Mr B., because Mr B. observed the abuse he was subjected to every day and did nothing to stop it, and sometimes joined in the snigger and laughing.  When questioned about the option of complaining to a union representative, the complainant stated that the company’s union representative was employed on a site in Cork.  The complainant further submitted that he eventually spoke to a former union representative whom he trusted, who advised him to seek advice from a solicitor in this matter.

5.7.       When asked by the respondent’s representative why he did not complain to anybody else during his period of employment, the complainant responded that he did not know who to see, since his supervisor was joining in the harassment, that he felt already singled out, and that he felt he needed his wages from his employment, approximately €1450 per week, to provide for himself and his family.  The complainant stated that he was afraid he would loose his job if he raised a complaint.  The complainant further stated that he occasionally said to the others on the crew that they were “not fair” in how they treated him.  He stated that he hoped his colleagues would change their attitude.

5.8.       The respondent’s HR professional, Ms C., stated that the respondent does have a policy to prevent bullying and harassment. She stated that she was not sure how staff members were made aware of the policy at the time of the complainant’s employment with the respondent. The respondent submitted copies of the policy to the Tribunal after the hearing.  The policy states, inter alia:

Harassment includes any act or conduct that is unwelcome, unsolicited, unwanted and unacceptable, and could be regarded as offensive, humiliating or intimidating, with a potential negative impact on the work environment. […]

An individual will decide what behaviour is acceptable – not what the perpetrator, employer or another colleague finds acceptable. […]

Every manager has a responsibility to maintain the work place free of any form of harassment. […]

Everyone in this company has the responsibility to prevent bullying and harassment and to report any instances that they are party or witness to.

5.9.       The complainant’s then supervisor, Mr B., gave evidence at the hearing on behalf of the respondent.  He stated that he was aware of the respondent’s policy on bullying and harassment.  He stated that he was aware of the treatment the complainant received from his work colleagues, but did not report it to management.  Mr B. stated that he put the treatment of the complainant down to “banter”, and that he would only intervene in such situations when they would get “out of hand”, which he defined as “people shouting and roaring at each other”.  He stated that regardless of his own interpretation of the situation as “banter”, that the complainant bringing a case before the Tribunal obviously meant that the complainant “took it to be something else”.

5.10.   I find that the treatment the complainant experienced during his employment on the respondent’s commissioning crew as described in paragraphs 5.2 to 5.5, and which was not rebutted by the main witness for the respondent, does constitute harassment on ground on the complainant’s nationality within the meaning of the race ground pursuant to S. 6(2)(h) of the Acts.

5.11.   I further find that the defence afforded to employers in S. 14A(2) of the Acts, viz. that the employer “took such steps as are reasonably practicable […] to prevent the person from harassing […] the victim” cannot be invoked by the respondent in the instant case, since:

·       The respondent was not able to show how the policy on bullying and harassment had been disseminated among staff;

·       The complainant credibly asserted that with no relevant union representative being present on site, and his own supervisor condoning the harassment he was subjected to, he did not know who to approach about the matter;

·       The complainant’s supervisor was aware of the harassment the complainant experienced, but did not do anything to stop it, or report it to senior management.

5.12.   With regard to his access to training, the complainant stated in oral evidence that the training course in question was a one-hour in-house refresher course on scissorlift operation, which the complainant was already qualified to operate, as he was in possession of the relevant certificate from the UK.  The complainant stated that he applied to do the course, but that his supervisor, Mr. B. stated he would not be going on the course because he was to be made redundant, which he was indeed on that same day.  The complainant’s selection for redundancy is a separate part of the complainant’s case and I will deal with it below.   With regard to this part of the complainant’s case, I find that the complainant did not submit any specific evidence that links Mr B.s refusal to his nationality, and therefore has not demonstrated that the refusal was connected to his nationality, rather than the fact that he was being made redundant. Accordingly, I find that the complainant has failed to establish a prima facie case with regard to discriminatory treatment in relation to training pursuant to S. 8(1)(c) of the Acts.

5.13.   I now turn to the issue of whether the complainant was discriminatorily dismissed by way of selection for redundancy.

5.14.   The respondent explained at the hearing that the complainant was employed as a pipe fitter on a commissioning crew, that is, a specialised team for a defined project, in the instant case installing machinery for a client and handing it over.  The respondent submitted that it would receive notice of the client’s manpower requirements on short notice and could not dictate same to the client.  It is common case between the parties that shortly after Mr B.’s return from holiday, an instruction issued to reduce the size of the crew by one.

5.15.   The complainant submits that according to the last-in-first-out principle (LIFO), he and a named colleague, with whom he was on friendly terms, had the exact same amount of service on the site, and that the colleague should have been let go as the complainant was more experienced and better qualified than the named colleague.

5.16.   The complainant further submitted that another named colleague, who also participated in his harassment, approached Mr B. and said to him: “No Irish man is going out of the gate while we employ a Brit”.  The complainant contends that his employment was terminated because of his nationality.  Mr B., for the respondent, denied that he had been approached by other members of the crew to “let the Brit go”, or that he tried to get rid of the complainant on his crew because of the harassment that the complainant was subjected to.

5.17.   The respondent further stated that it operated the LIFO principle, in accordance with general industry standards.  The respondent also conceded at the hearing that the complainant was indeed better qualified than the named colleague.

5.18.   With regard to why the employment of the complainant was terminated instead of the employment of the named colleague, the respondents submitted two different, and conflicting explanations for the decision at the hearing:

5.19.   The respondent first sought to aver that the complainant had less service with the company than the named colleague.  The respondent’s HR representative explained that service at different sites of the company would count as continuous service if the break between jobs was 13 weeks or less.  It was submitted that since the complainant had last worked for the respondent at another of the respondent’s sites in 1999.  It stated that in contrast, the named colleague had continuous service with the respondent.

5.20.   However, the respondent later stated that while the named colleague had served a four-year apprenticeship with the respondent, he had also experienced a break in employment with the respondent of more than 13 weeks before being deployed in the commissioning crew, and therefore had the exact same length of service as the complainant for the purposes of LIFO.  The respondent then stated that it felt a greater obligation towards the named colleague because of his previous apprenticeship. The respondent denies that the complainant’s redundancy was connected to his nationality.

5.21.   The respondent submitted that the decision to make a worker redundant was a joint decision between a full-time labour coordinator, who is attached to the respondent’s HR department and who is tasked to find possible employment on another site of the respondent’s in cases of possible redundancy; a senior manager, and the manager on site where the redundancy is about to occur.  When no alternative employment for a worker threatened by redundancy can be found, the worker is made redundant.

5.22.   The respondent in general and Mr B. as the complainant’s supervisor on site in particular, strenuously denied that the complainant’s nationality had any bearing on his being made redundant.  Mr B. insisted that he would not be influenced by a member of his crew making representations to him that a worker should be made redundant on grounds of his nationality.  The respondent’s senior manager, Mr. G., also gave evidence that he had personally known the complainant for a number of years and also denied that the complainant’s nationality had any bearing on his redundancy.

5.23.   In weighing up the evidence submitted to the Tribunal in this matter, I find that the complainant does raise a prima facie case that the termination of his employment was connected to his nationality, due to the proximity in time with the harassment he experienced on grounds of his nationality, and which was known to his supervisor.  The burden of proof therefore shifts to the respondent, pursuant to S. 85A of the Acts, to show that the dismissal of the complainant was not connected to his nationality. 

5.24.   In examining the respondent’s defence in this matter, I find the second explanation for the complainant’s redundancy that was offered to the Tribunal to be more credible than the first.  I also attach importance to the evidence of Mr. B. (see para 5.22 above), whom I found to be an altogether credible witness. I also found the respondent’s explanation as to how a redundancy situation is examined and then decided (see para 5.21 above), on which they were extensively cross-examined by counsel for the complainant, to be credible.

5.25.   I note the finding of the Labour Court in Flexo Computer Stationery Ltd. v. Kevin Coulter [EED0313], in which the court examined possible discrimination in selection for redundancy pursuant to S. 8(6)(c) of the Acts.  In that case the respondent to the appeal had complained that he was selected for redundancy on grounds of his age.  The appellant submitted that the respondent had been selected for redundancy because of a minor disciplinary matter, since there was little otherwise to distinguish the five workers among whom one would have to be selected for redundancy.   The Court found that:

There were no agreed or established procedures or criteria in the employment regulating selection for redundancy. Nonetheless the respondent considered selecting on the basis of last-in-first-out (LIFO). Having consulted the Department of Enterprise Trade and Employment he became satisfied that he was not required to adopt this mode of selection. Moreover, it is no part of the complainant’s case that LIFO should have been used. In evidence he expressed the view that a printer with significantly longer service than his should have been selected.

The respondent did consider the relative work performance of all printers as a possible criterion for selection. However he concluded that there was little separating them or, in the case of one person, there were countervailing factors in favour of his retention. Finally, the respondent selected the complainant because of the incident which occurred in 2002 which, he said, caused him to doubt the complainant’s credibility.

At the time of its occurrence this incident was not considered to be of such gravity as to warrant any form of disciplinary action. It would appear to the Court that reliance upon it some time later to select the complainant for redundancy was unfair and contrary to good practice. However, as was pointed out by O’Sullivan J in Mulcahy v Minister for Justice Equality and Law Reform [2002] ELR 12, there is no rule in law or in logic to say that because a person offers a bad reason to justify a dismissal this necessarily means that the bad reason is not the real reason. Further, reliance by the respondent on an unfair ground for selection cannot avail the complainant in the present proceedings unless the ground is also discriminatory within the meaning of section 6 of the Act.

5.26.   I note that in the case on hand, the respondent has committed to the LIFO principle; however, I find the Labour Court’s finding in the above case to be helpful guidance in a situation where two workers do have the exact same service.  The reason the respondent submitted for keeping the named colleague of the complainant’s, namely that this named colleague had already served their apprenticeship with the respondent and that the respondent therefore felt a greater sense of obligation towards him, does not strike me as a bad reason, or unfair practice within the meaning given to these terms in the Flexo Stationary case.  Moreover, an Irish worker could have been affected by it in equal measure, if that Irish worker would have happened to be in the complainant’s situation with regard to length of service.

5.27.   In weighing up the evidence on this part of the complainant’s case, I find that the decision to make the complainant redundant, while proximate in time to harassment on grounds of nationality that the complainant had experienced while in the employment of the respondent, was taken for reasons that have no connection to the complainant’s nationality. I therefore find that the respondent has rebutted the complainant’s contention that his selection for redundancy was connected to his nationality.  Accordingly, I find that the respondent did not discriminate against the complainant contrary to S. 8(6)(c) of the Acts.

Decision

6.1.       Based on all of the foregoing, I find that:

(i)                 The respondent discriminated against the complainant in relation to his conditions of employment contrary to S. 8(1)(b) of the Acts by not taking reasonable and practicable steps to prevent his harassment on ground of race contrary to S. 14A(7) of the Acts;

(ii)               The respondent did not discriminate against the complainant in relation to training contrary to S. 8(1)(c) of the Acts and

(iii)              The respondent did not discriminatorily select the complainant for redundancy on ground of race contrary to S. 8(6)(c)of Acts.

6.2.       In accordance with S. 82 of the Employment Equality Acts 1998 to 2007, I  therefore order that the respondent

(i)                 Pay the complainant €20,000 in compensation for the harassment endured.  This award takes into account the fact that the harassment persisted for nearly the entire time the complainant was in the respondent’s employment, that some of the acts committed were of a blatant and intimidatory nature, and that the complainant’s supervisor was aware of the situation but failed to take any action in respect of same.

This award is in compensation for the humiliation and distress experienced by the complainant, and is not in the nature of pay, and therefore not subject to tax.

_________________________

Stephen Bonnlander

Equality Officer

7 July 2008