The Equality Tribunal
Employment Equality Acts
Decision DEC-E2010-053
PARTIES
Adekunle Sodiq
(Represented by Richard Grogan & Associates)
- V -
Carnito Ltd t/a Comrade Security
(Represented by Peninsula Business Services (Ireland) Ltd)
File reference: EE/2007/476
Date of issue: 19 April 2010
Keywords - Employment Equality Acts – Discriminatory Treatment - Discriminatory Dismissal – Race - Prima Facie case
1. DISPUTE
1.1 This dispute concerns a claim by Mr Adekunle Sodiq that he was subjected to discriminatory treatment and dismissal by Carnito Ltd. on the grounds of race in terms of section 6(2) of the Employment Equality Acts and contrary to section 8 of those Acts.
1.2 The complainant referred a claim of discrimination to the Director of the Equality Tribunal on 10 September 2007 under the Employment Equality Acts. On 28 August, 2009, in accordance with her powers under section 75 of the Acts, the Director then delegated the case to Conor Stokes - 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 on which date my investigation commenced. Submissions were sought and received from the parties. As required by Section 79(1) and as part of my investigation, I proceeded to hearing on 14 April 2010. All written and oral evidence presented to the Tribunal has been taken into consideration when coming to this decision.
2. SUMMARY OF THE COMPLAINANT'S CASE
2.1 The complainant submitted that he was employed by the respondent as a Security Guard from 27 May 2007 until he was dismissed on 11 July 2007. The complainant is a Nigerian national and it is on this basis that this complaint is being taken. The complainant further submitted that he did receive a contract and Health & Safety documentation, but that the disciplinary policy referred to therein was not followed in his case.
2.2 The complainant submitted that he did not receive any training in relation to his work.
2.3 The complainant submitted that he must establish a prima facie case and cited the Labour Court case of Southern Health Board v Mitchell in support of this contention.
2.4 The complainant referred to the Equality Tribunal case 58 named Complainants v Goode Concrete Ltd. in relation to dismissal, contract of employment and Health & Safety.
2.5 The complainant submitted that he is seeking compensatio
3. SUMMARY OF THE RESPONDENT’S CASE
3.1 The respondent denied that the complainant was treated less favourably on the grounds of race or at all.
3.2 The respondent submitted that the complainant has a good level of English, having completed 'O' levels and that the recognised official language of Nigeria is English. The respondent further submitted that the complainant had prior training with the Private Security Authority and was provided with in-house training on commencement of employment. He was not with the respondent company long enough to benefit from additional training.
3.3 The respondent submitted that while the procedures used in dismissing the complainant may have been lacking and unfair in the case of employees with service of less than twelve months (as outlined in the standard contract), there is no basis upon which they could be deemed discriminatory and the complainant has adduced no concrete evidence of such. The respondent further submitted that it now follows full and correct procedures regardless of length of service.
4.FINDINGS AND CONCLUSIONS OF THE EQUALITY OFFICER
4.1 The issue for decision by me is whether or not the respondent discriminated against Mr. Sodiq on grounds of race, in terms of section 6 of the Employment Equality Acts, and contrary to section 8 of those Acts.
4.2 Section 85A of the Employment Equality Acts sets out the burden of proof which applies to claims of discrimination. It requires the complainant to establish, in the first instance, facts from which discrimination may be inferred. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised.
4.3 When questioned as to how he was less favourably treated, the complainant stated in evidence that he was told once by the Managing Director that he didn't like the way he worked. The complainant was invited to provide the Tribunal with further details of how he was less favourably treated on grounds of race but stated that this was the only one he could remember.
4.4 The complainant then stated that some workers worked days and some worked nights and that some were favoured in this regard. He then stated that most of the people who worked days were Irish. When asked how he knew, he stated that he just knew. He stated that he worked mainly nights.
4.5 In the case of Dyflen Publications Limited and Ivana Spasic (ADE/08/7) the Labour Court, in adopting the approach of Mummery LJ in Madrassy v Nomura International plc [2007] IRLR 246, stated that “… the court should consider the primary facts which are relied upon by the complainant in their proper context. It also indicates that in considering if the burden of proof shifts the court should consider any evidence adduced by the respondent …”. In that regard, the respondent produced the company's timesheets in the hearing, the contents of which were not disputed by the complainant. The timesheets indicated that the majority of shifts worked by the complainant were day shifts and did not reveal any less favourable treatment of any nationality compared with any other. The company employs a number of nationalities but has a majority of Nigerian nationals in its workforce, including in management positions.
4.6 In the Labour Court case of Melbury Developments Limited and Valpeters (ADE/09/16). the Court stated, inter alia, that:
Section 85A of the Act provides for the allocation of the probative burden in cases within its ambit. This requires that the Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.
In this case it was submitted that the Complainant was treated badly by the Respondent and the Court was invited to infer that he was so treated because of his race. Such an inference could only be drawn if there was evidence of some weight from which it could be concluded that persons of a different race or nationality were or would be treated more favourably. All that has been proffered in support of that contention is a mere assertion unsupported by any evidence.
Mr Grogan, Solicitor for the Complainant has pointed to the difficulty for the Complainant in obtaining evidence concerning how others were treated. He submitted that in these circumstances the Respondent should be required to prove that others were treated similarly to the Complainant. In the Court’s view such an approach would amount to placing the entire probative burden on the Respondent. That would involve an impermissible departure from the plain language and clear import of Section 85A of the Act and the Community law provision upon which it is based.
4.7 The Tribunal was invited to conclude from the evidence and submissions presented that the complainant was less favourably treated and that an ethos of racial discrimination existed in the respondent company. From the complainant's direct evidence presented to me, I am not satisfied that the complainant was treated in a less favourable manner than any of his colleagues. Furthermore, I am of the view that all that has been proffered in support of this complaint is mere assertion unsupported by any evidence, and I am not satisfied that the complainant has established facts from which discrimination may be inferred. Accordingly, I find that the complainant has not established a prima facie case. Therefore, this complaint fails.
5. DECISION
5.1 Having considered all the written and oral evidence presented to me, I find that a prima facie case of discriminatory treatment or dismissal on the basis of the race ground has not been established and this complaint fails.
Conor Stokes
Equality Officer
19 April 2010