THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision DEC - E2010-244
PARTIES
Arkaduysz Urban
-V-
International Fund Services (Ireland) Ltd
represented by Peter Flood IBEC
File Reference: EE/2008/342
Date of Issue: 10/12/2010
Keywords
Employment Equality Acts 1998-2008, Section 6(1) - less favourable treatment , - Section 6(2)(h) - Race, Section 6(2)(f)- Age, Section 8 - training - dismissal, prima facie case.
1. Dispute
1.1 This dispute concerns a claim by a complainant that he was discriminated against by the above named respondent on the race and age grounds, in terms of Sections 6(1), 6(2)(h) and 6(2)(f) of the Employment Equality Acts 1998-2008 and contrary to section 8.
2. Background
2.1 The complainant referred a complaint under the Employment Equality Acts to the Equality Tribunal on the 28th May 2008 alleging that the respondent discriminated against him contrary to the Acts. In accordance with his powers under section 75 of the Employment Equality Acts, 1998-2008 the Director delegated the case on 3rd August, 2010 to me, Marian Duffy, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of those Acts This is the date I commenced my investigation. Written submissions were received from the complainant on the 25th November 2008 and from the respondent on the 10th February 2009. As required by section 79(1) of the Acts and as part of my investigation, I proceeded to hearing on the 9th November , 2010
3. Summary of the Complainant's Case
3.1 The complainant is a Polish national and was employed by the respondent as a graduate trainee fund accountant on the 24th September 2007 until the 28th April 2008. He was on probation for 6 months. He submits during the course of his employment he was subject to a bad performance review and he believes this was due to his nationality and race. He said that he worked in a team of 9 people which included a director and manager and he was the only non-Irish person in that particular team. He said that he was also the oldest, the other graduates recruited by the company were between 21 and 25 years old whereas he was 33 years old at the time.
3.2 The complainant contended that the first time he noticed that he was being treated unfairly was at his 3 month performance review where he got a very low rating. The complainant said that he initially got a three day induction course and had only been given one month's training with another employee whereas the other trainee graduates had more assistance. He said that he was supposed to ask questions of his supervisor, but when he did so he was told that the particular query he had had already been explained to him. He said that they did not like him asking questions. The other graduates had constant help. One was working on one big fund on which three or four people were working and he had the benefit of this extra assistance. He said that he was working on a smaller fund and had no assistance. He believes that the company's expectation of him was much higher than the other two graduates. He said that he accepted the three months performance review even though he did not agree with it. He decided he would keep a record of all of the tasks he did and all the problems he encountered.
3.3 The complainant denied that he had any difficulties in carrying out the job. He said the record shows he carried out the tasks on time and submitted the daily reports he was required to do to his manager on time. He said that his manager also supervised the bigger fund and this took priority over his work and as a result delays occurred. He said any difficulties in meeting deadlines arose from matters outside his control such computer problems a lack of back up, difficulties with the fund account and insufficient training. He said that he had an informal review with his manager in or about early March 2008 and he was told at that meeting that he had made progress. On the 26th March 2008 he was called to a formal review and he was told that his performance was not sufficient and as a result he did not pass his probation and his employment was terminated. The complainant said that the other two Irish graduate trainees passed their probation and they were retained in the employment.
4. Respondent's case
4.1 The respondent submitted that the complainant was employed as a graduate trainee fund accountant. He had no previous experience in such a role. In line with normal practice he was provided with 3 days induction training, the first on commencing the employment and the other two some weeks later. The complainant was replacing another Fund Accountant who was returning to his home country of Slovakia after about a year and a half in the employment. There was a month overlap between the complainant joining the company and this employee leaving the employment so the complainant had the benefit of more extensive training than he would normally receive. The respondent submitted that it takes up to 3 months to get familiar with the work but the complainant had difficulties in getting up to the required level of experience within this time frame. He had the assistance of a Senior Fund Manager who found that the complainant was asking the same questions every day and did not appear to be making progress with the training he had been given.
4.2 At his 3 month probation review it was clear the complainant had not reached the required standard in that he only received a rating of 2 out of 5 under most headings. The complainant's manager stated that the complainant should have been ready to take on additional responsibility but it was clear he was not ready for it. The complainant signed off on the 3 month probation report and management agreed to put further training and supports in place for him. He was supported by a Senior fund Manager but while he made some progress he continued to miss deadlines when he had more complicated work to do. He was also expected to take on additional work including helping out on other parts of the fund but he did not do so. He was called to an informal meeting with the Fund Manager to discuss his ongoing performance. The fund Manager said that while she acknowledged to the complainant that he had improved she also pointed out to him that he was still not meeting the requirements for the job. This meeting was intended to give the complainant an opportunity to make a better effort to improve before the 6 month probation review.
4.3 The respondent said that the complainant performance did not improve sufficiently after the above meeting and he did not pass the 6 month probation review. As a result the complainant was dismissed. The respondent denied that the complainant's nationality had any connection with the decision to terminate his employment. They submitted that the company employs many different nationalities. In the fund account area they have 360 employees of which 109 are non Irish and in the wider company they have 788 employees and 231 are non Irish. In relation to the complaint of age discrimination, the respondent stated that there were employees in the fund account area from the early twenties up to age 45. They said that it was not unusual to have a graduate trainee who was in their thirties.
5. Conclusions of the Equality Officer
5.1 The issues for decision in this case is whether or not the respondent discriminated against the complainant on the grounds of race and age, in terms of section 6(1) and 6(2)(h) and (f) of the Employment Equality Acts, 1998 to 2008 and contrary to section 8 of those Acts as regards his conditions of employment and dismissal. Section 6 of the Acts inter alia provides:
6. -- (1) "For the purposes of this Act and without prejudice to its
provisions relating to discrimination occurring in particular circumstances,
discrimination shall be taken to occur where --
(a) a person is treated less favourably than another person is,
has been or would be treated in a comparable situation
on any of the grounds specified in subsection (2) (in this
Act referred to as the ''discriminatory grounds'') which --
(2) As between any 2 persons, the discriminatory grounds (and
the descriptions of those grounds for the purposes of this Act) are --
(f) that they are of different ages, but subject to subsection (3) (in this Act referred to as "the age ground"),
(h) that they are of different race, colour, nationality or ethnic
or national origins (in this Act referred to as ''the ground
of race''),"
and Section 85A of the Acts provides:
"(1) Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary".
5.2 This requires the Complainants to prove the primary facts upon which he is seeking to rely to raise an inference of discrimination. It is only when he has discharged this burden to the satisfaction of an Equality Officer that the burden shifts to the respondent to rebut the inference of discrimination raised. If the complainant does not discharge the initial probative burden required of him his case cannot succeed. In reaching my decision, I have taken into account all of the submissions, written and oral, made by the parties.
5.3 Firstly, I will consider the issues that have been raised by the complainant in relation to his employment which he contends constitutes unlawful discrimination and dismissal on the race ground contrary to the Acts. He submits that the respondent treated him differently than he treated two Irish trainee graduates who joined about the same time as he did in that he got less training and support than Irish employees and he got a bad 3 month performance review. He said he kept a record of his performance and he was told by management some weeks prior to the 6 month review that his performance had improved but despite this assurance he was dismissed following a bad 6 month review. He submits that the dismissal was not warranted and he believes it was connected to his race.
5.4 The respondent denies that the complainant was discriminated against because of his race. They submit that his employment terminated because he failed his probation period of 6 months because of his poor performance. He needed extensive assistance. They submitted that despite the fact that extra assistance and training the complainant performance did not improve sufficiently to pass his 6 month review. They further submitted that the two Irish employees did not require the level of support the complainant required. They were both able to carry out a much heavier workload than the complainant and they both passed their probation period.
5.5 In considering the issues, I note from the evidence that there were employees of different nationalities in the company including in the complainants team at the time he started the employment. In order to raise an inference of discrimination on the grounds of nationality, the complainants must first produce some evidence of less favourable treatment. I note that the complainant was provided with training and assistance during the initial period of his employment. Likewise I note further training and supports were put in place by the respondent following his 3 month review because management believed he had not progressed sufficiently in the job. The complainant accepts that these supports were put in place and that he could ask for direction from his supervisor. I am satisfied that the reason for the complainant dismissal was solely related to his performance and had nothing whatsoever to do with his nationality.
5.6 I find that the complainant has not adduced any such facts from which discrimination could be inferred. The complainant has made a number of allegations about discrimination not backed up by any facts. In considering this point I have considered the reasoning in the case Melbury Developments and Valpeters (Det. No. EA AO917) where the Labour Court stated:
"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."
5.7 The above reasoning of the Labour Court is applicable in this case in that the complainant has made assertions about discrimination unsupported by any cogent evidence. Having regard to the totality of the evidence adduced in the present case, I am not satisfied that the complainant has adduced any evidence from which I could reasonably conclude that he was treated less favourably than an Irish person or a person of a different nationality was treated or would have been, in similar circumstances, in relation to his conditions of employment and dismissal. Accordingly, I find that the complainant has failed to establish a prima facie case of discrimination in relation to this aspect of his complaint.
5.8 The next matter I have to consider is whether the complainant was discriminated against on the age ground. The complainant submits that he was thirty three and the Irish graduate trainees were in their twenties and that he was treated differently to them. The respondent submitted that they have taken on graduate trainees who were in their late twenties or early thirties and after the complainant left they took on an Italian who was in his late twenties. In addition their employees range in age up to about 45 in this particular part of the company. Having considered the totality of the evidence produced by the complainant, I find no evidence to support his complaint of less favourable treatment in respect of his age. I am satisfied that the complainant's age was not a factor in the treatment in the employment and in the decision taken to dismiss him. In applying the test in the Melbury case cited above I find that the complainant has failed to establish a prima facie case of age discrimination.
6. Decision
6.1 Having investigated the above complaint, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts, 1998 to 2008. I find that the respondent did not discriminate against the complainant on the race or age ground pursuant to sections 6(1) and 6(2)(h) and 6(2)(f) of the Acts in terms of his conditions of employment and dismissal contrary to section 8 of the Acts.
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Marian Duffy
Equality Officer
10th December 2010