THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision DEC - E2010- 098
PARTIES
Joseph Ndengu
(represented by Carley & Co. Solicitors)
-V-
J & I Security Ltd
File Reference: EE/2007/381
Date of Issue: 15th June 2010
Keywords
Employment Equality Acts 1998-2004 - direct discrimination - Section 6(1), less favourable treatment - Section 6(2)(h) race ground, Section 8(1)(b) - conditions of employment, Section 14A - harassment, prima facie case.
1. Dispute
This dispute involves a claim by the above named complainant that he was discriminated against by the above named respondent on the race ground, in terms of section 6(1) & 6(2)(h) and contrary to section 8(b) of the Employment Equality Acts, 1998 and 2008 in relation to his conditions of employment. The complainant also claims that he was harassed contrary to section 14A of the above Act.
2. Background
2.1 The complainant referred a complaint under the Employment Equality Acts 1998 - 2004 to the Equality Tribunal on 26th July 2007 alleging that the respondent discriminated against him relation to his conditions of employment and he also claimed that he was subjected to harassment in the course of his employment. At the commencement of the hearing the complaints about discriminatory dismissal and equal pay were withdrawn.
2.2 In accordance with her powers under section 75 of the Employment Equality Acts, 1998-2008, the Director delegated the case on 23rd of July, 2009 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. A hearing on the complaint was held on the 5th of November 2009.
3. Summary of the Complainant's case
3.1 The complainant, who is an Zimbabwean national, submits that he was employed as a security guard and started work with the respondent in October 2002. He was employed to guard construction sites and demolition sites in various areas in Dublin. He worked the night shift from 8pm to 8am up to 7 nights per week and the respondent usually texted him with the instruction as regards his work location. The complainant submitted in evidence a number of complaints regarding his conditions of employment and health and safety issues. He said that he was posted to work on a demolition sites which usually had no security hut or shelter, no heating, toilet, or facilities to eat his food. Some of the sites had no lighting. The complainant said that he purchased a car so that he could use it on sites where there was no security hut. The respondent promised to pay him for petrol once he provided receipts, but he failed to do so. On one site he was attacked and his car was destroyed by the intruder. The respondent promised to pay for the repair of the car but he refused to pay it when the complainant produced the estimate of €5,000 to have it repaired. He said that the respondent made allegations about the manner in which he carried out his duties and on one occasion he accused him of being asleep on a site and refused to pay him for 50 hours worked that week. He also submitted that the respondent constantly delayed paying him his wages and on some occasions had to wait for weeks to get paid.
3.2 The complainant submitted that the respondent was in breach of the terms of the Security Industry Joint Labour Committee SEC(2006 No 2) which sets out wages and conditions of employment for employees of security firms. The conditions include that security employers should provide facilities for their employees such as shelter and heating or arranging with clients to provide such facilities for security employees.
3.3 The complainant said that the respondent employees were mainly black and Pakistani nationals. He said that there were about 3 Irish nationals employed and they were treated much better. They drove around in company vans and visited the sites he was employed on. He said that they were not subjected to the harsh working conditions he had to endure.
3.4 The complainant also said that the respondent harassed him during the course of his employment. He said that he was continually abused by him about incidents which occurred on the sites.. The complainant submitted that when he raised any issues with the respondent particularly in relation to health and safety issues the respondent constantly shouted and yelled at him and called him offensive names such as "lazy ****" and "black b****". After he was attacked by an intruder the respondent was very reluctant to give him a night off work and was very abusive to him. The complainant said that he felt humiliated, and reduced to virtually nothing, and that he believed he was treated as a second class citizen. He submitted that the respondent intimated to him on one occasion that his safety, because of his race, was less important than getting the job. The complainant said that he felt that he was being treated like rubbish who did not deserve any safety measures because he was black.
3.5 The complainant said that he was dismissed following an incident of theft from a site which he had no responsibility for. He took an unfair dismissal case to the Employment Appeals Tribunal and this case was settled on the day of the hearing. The complainant submitted that following the settlement the respondent proceeded to abuse him and he called him a "black b****" and the respondent had to be restrained. This happened in front of the Tribunal members and the representatives and the matter was reported to the Gardaí. The complainant's solicitor confirmed that this incident occurred.
4. Respondent's Case
4.1 The respondent did not respond to the complainant's submission and neither did he attend the hearing.
5. Conclusions of the Equality Officer
5.1 In this case, I must consider the complainant's claim that the respondent directly discriminated against him on the race ground in terms of section 6(1)(a) and 6(2)(h) of the Employment Equality Acts 1998 and 2004, in contravention of sections 8 of the Acts in relation to his conditions of employment. I must also consider whether the complainant was harassed within the meaning of section 14A of the Acts. 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 complainant.
It is a matter for the complainant in the first instant to establish a prima facie case of discriminatory treatment. I note that Section 85A of the Employment Equality Acts, sets out the burden of proof necessary in claims of discrimination. It provides;
"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."
It requires the complainant to establish, in the first instance, a prima facie case of discrimination, that is, facts from which it can be established that he was discriminated against on the race ground in relation to his conditions of employment. 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.
5.2 The Labour Court in the case of The Southern Health Board v. Dr. Teresa Mitchell (DEE011 15th February 2001considered 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 he was not discriminated against on grounds of their sex. If the complainant does not discharge the evidential burden, the claim cannot succeed.
5.3 Subsequently, the Labour Court stated in relation to the burden of proof in a case brought on the race and religion grounds:
"It is now the accepted practice of this Court that in all cases involving discrimination the probative burden will shift to the respondent in circumstances where the complainant establishes a prima facie case of discrimination.
The test normally used in determining when and in what circumstances the burden of proof shifts to the respondent is that formulated in the case of Mitchell v Southern Health Board [2001] ELR 201. This test provided that the complainant must first prove the primary facts upon which they rely in asserting discrimination. If those facts are proved and they are regarded by the Court as of sufficient significance to raise an inference of discrimination, the burden of proving the absence of discrimination shifts to the respondent.
This test is based on the wording of the European Communities (Burden of Proof in Gender Discrimination Cases) Regulations 2001. These regulations provide that the probative burden shifts where the complainant establishes facts from which discrimination may be presumed. The wording used in the regulations, which is derived from Directive 97/80 EC (The Burden of Proof Directive), is now replicated in Article 8 of Council Directive 2000/43 on Equal Treatment between Persons Irrespective of Racial or Ethnic Origin.
5.4 Section 6(1) of the Employment Equality Acts 1998 and 2004 provides:
"..... discrimination shall be taken to occur where -
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')"
Section 6(2)(h) 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"),",
5.5 Firstly, I will consider the issues that have been raised by the complainant in relation to his conditions of employment which he contends constitutes unlawful discrimination of him on the grounds of race contrary to the Acts. In his evidence he stated that he was not provided with shelter, heating, toilet facilities or facilities to eat his lunch in contravention of the Security Industry Joint Labour Committee SEC(2006 No 2). He submits that the Irish employees were given more favourable working conditions than he was. He further submits that the only reason he was treated in such a manner in relation to his conditions of employment was due to his colour and race. It was therefore submitted that the Tribunal should infer that the complainant has been subjected to less favourable treatment on the grounds of race and accordingly, that the burden of proof should shift to the respondent to rebut the inference of discrimination. The respondent did not attend or give evidence at the hearing or provide a written statement in response to the complaint.
5.6 In considering these issues, I note that the complainant stated in evidence that there were workers of various nationalities employed as security workers by the respondent at that time and that they were all treated in a similar way to the complainant. I also note that the Irish employees to which the complainant seeks to compare his conditions of employment with were not employed in a similar circumstances to the complainant, they appear to have been employed in a supervisory capacity. The complainant has to establish that he was treated less favourably than a person is or would be treated in comparable circumstances. While the evidence put forward by the complainant may support a claim that the respondent treated him badly, the evidence does not establish that employees of a different race or nationality would have been treated more favourably in comparable circumstances.
5.7 In considering this case I have taken cognisance of the Labour Court decision in the case of Melbury Developments Limited v Arthurs Valpeters (Determination No. EDA0917) where the Court stated:
"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."
In the present case, I accept that the complainant has adduced evidence to suggest that he may have been treated badly by the respondent in terms of the aforementioned elements of his conditions of employment. It should be noted that I do not have any jurisdiction to decide whether or not the respondent was in breach of his obligations under the employment and/or health and safety legislation JLC for the security industry. In applying the reasoning in the determination of the Labour Court in the Melbury case above, I am satisfied that unfavourable treatment, in the absence of evidence of less favourable treatment, is of insufficient weight to establish a prima facie case of discrimination.
5.8 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 would have been, in comparable circumstances, in relation to the aforementioned aspects of his conditions of employment. Accordingly, I find that the complainant has failed to establish a prima facie case of discrimination in relation to his conditions of employment.
5.9 The next matter I must consider is the complainant's claim that he was harassed contrary to Section 14A of the Acts. Section 14A of the Acts defines harassment as:
"any form of unwanted conduct related to any of the discriminatory grounds, and........ being conduct which in either case has the purpose or effect of violating a person's dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person."
The Act goes on to give examples of unwanted conduct and states:
"(b) Without prejudice to the generality of paragraph (a), such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material."
5.10 The complainant submits that he was called offensive names and shouted at. He submits that when he complained about poor working conditions and safety issues or when security incidents arose on the sites the respondent subjected him to racial abuse and insults and comments which he believes referred to his race and which he found offensive. I note that the complainant claims that he was called names which referred to his colour. I note that the complainant adduced evidence to support one of the incidents of racial insults. He stated that he was called "a black b****" at the Employment Appeals Tribunal. The complainant's solicitor confirmed to the Tribunal that she was present and heard the complainant being called offensive names by the respondent. It is obvious that that a person of a different nationality and colour would not be called such a name. I find that this evidence is of sufficient weight to support the complainant's evidence of harassment. Having examined the totality of the evidence, I am satisfied that the complainant has adduced evidence to support his claim that he was subjected to offensive names and to a working environment which was hostile and intimidating. I find therefore, that the complainant has established that he was treated less favourably on the race ground than another person of a different nationality was treated or would have been treated in comparable circumstances. Accordingly, I find that the complainant has established a prima facie case of harassment on the race ground within the meaning of the Acts. The respondent did not attend the hearing. I find therefore that the respondent has failed to rebut the prima facie case of harassment on the race ground established by the complainant.
6. Decision
Having investigated the above complaints, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts, 1998 to 2008. I find that:
(i) the respondent did not discriminate against the complainant on the race ground pursuant to section 6(2) of the Acts in terms of his conditions of employment contrary to section 8(1) of the Acts;
(ii) the respondent subjected the complainant to harassment contrary to section 14A of the Acts.
6.3 In accordance with section 82 of the Employment Equality Acts 1998-2007, I hereby order that the respondent:
(i) to pay the complainant the sum of €6,000 compensation for the effects of the acts of harassment. This figure represents compensation for infringement of his rights under equality legislation in relation to harassment. It does not include any element of remuneration and is not therefore subject to tax.
____________________
Marian Duffy
Equality Officer
15th June 2010