The Equality Tribunal
3 Clonmel Street
Dublin 2.
Phone: 353 -1- 4774100
Fax: 353-1- 4774141
E-mail: info@equalitytribunal.ie
Website: www.equalitytribunal.ie
Employment Equality Acts
1998-2011
EQUALITY OFFICER'S DECISION
NO: DEC-E2011-148
PARTIES
Tomasz Wojciechowski
(Represented by Richard Grogan and Associates)
- V -
Tesco Ireland Limited
(Represented by IBEC)
File references: EE/2009/070
Date of issue: 6 August 2011
Keywords
Employment Equality Acts 1998-2011 - Discriminatory Treatment - Harassment- Race - Condition of employment - Prima facie case
1. Dispute
1.1. This dispute concerns a claim by Mr. Wojciechowski (hereafter "the complainant") that he was subjected to discriminatory treatment contrary to the Employment Equality Acts by Tesco Ireland Ltd. (hereafter "the respondent") on the grounds of his race.
2. Background
2.1. The complainant referred his claim of discrimination to the Director of the Equality Tribunal on 2 Febuary 2009 under the Employment Equality Acts. This claim was made on the race ground. On 2 March 2011, in accordance with his powers under section 75 of the Acts, the Director then delegated these cases to me, Elaine Cassidy - 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. As required by Section 79(1) and as part of my investigation, I held an oral hearing on 23 March 2011 and, at the complainant's request, a second hearing on 8 June 2011.
3. Case for the complainant
3.1 The complainant, a Polish national, has been working for the respondent as a security officer since 25 May 2006. By way of background the complainant explained that he had been engaged in a long-running dispute with the respondent over his rate of pay. This dispute lasted for over a year and was very stressful for him. He submitted that the respondent had tried to claim that he was overpaid and tried to take the money back from him, but he objected to this. At first he tried to resolve the issue by himself, but then he got his union representative and his solicitor involved. Shortly after the dispute ended, and with no warning, he was called to a meeting and told that he was to be immediately suspended without pay. The HR manager was there, but there were no other witnesses and he was given no warning. He submitted that in his capacity as a security officer he had experience of employee disciplinary matters and he knew that they could have suspended him on full pay, but chose not to. He submits that he was left on this unpaid suspension for about three weeks.
3.2 The complainant's legal representative submitted that the respondent took disciplinary action against the complainant, without any regard to the appropriate procedures and without making an additional effort to explain the matter fully to the complainant, a non-native English speaker. He referred to Campbell Catering Ltd v Rasdaq EED048 in support of this claim. He submitted that an Irish national would not have been so treated.
3.3 The complainant's legal representative further submitted that there was no requirement in the complainant's contract of employment to have a licence to work in the security industry.
3.4 The complainant's legal representative stated that it caused more hardship to non-nationals to be suspended without pay, because they had no family support to fall back on.
4. Case for the respondent
4.1. Introductory Legal Submission
4.1.1 The respondent submitted that Tesco is bound by the Private Security Service Act 2004, which states at Sections 22 and 27 that individual employees must be licensed and that this is a matter between the employee and the PSA (Private Security Authority) only; ie: the employer is not involved. The respondent further submitted that under S.38 of the above-mentioned Act, Tesco cannot employ a person who is not licensed.
4.2 Witness for the respondent - a named Employee Relations representative
4.2.1 The witness outlined the background to the complainant's original dispute. She submitted that due to a typing error on the complainant's original employment contract, he was paid €0.27 per hour more than he should have been. She submitted that the correct rate was that which was agreed at a national level with Mandate and applied to all Retail Security Officers of the complainant's grade. A review was undertaken to ensure that the agreed rate was applied to all staff and some discrepancies were found, one of which was the complainant's. She instructed that the correct rate was to be applied to the complainant. A dispute ensued, but it ended with the complainant maintaining his higher rate and not having to pay back the excess.
4.3 Witness for the respondent - a named Loss Prevention and Security Manager
4.3.1 The witness submitted that his job is to set policy and procedures and ensure compliance with legislation, on all matters related to security. He submitted that Tesco is bound by the Private Security Service Act 2004 which requires both employers and employees to be correctly licensed. At the time of the introduction of the legislation, he estimated that about 340 Tesco employees were affected. In order to initiate the process, the respondent sent a letter to all security employees to inform them of the new requirement and also gave them a copy of the application form to send to the PSA. Once the initial process was completed, it was the witness' job on an ongoing basis, to review and monitor the employee database, because the PSA licences are only valid for 2 years. In 2008 the witness conducted this review of all directly-employed security staff and found 16 employees whose status was unclear. In August 2008 he sent a standard letter to all 16 of them (via their local store managers) to remind them that they were not listed as licensed security staff on the official PSA publication. In the complainant's case this letter stated that the complainant must immediately contact his line manager to give a full explanation of his circumstances, or risk having his employment terminated, as a result of his failure to fulfill his contractual obligations.
4.3.2 The PSA sent a "Section 52" letter to the complainant on 24 September 2008, noting that he had applied for the licence within the critical time and that he could use this letter in place of a licence, for a grace period ending on 31 October 2008. The PSA letter instructed the complainant to carry the letter with him at all times while on duty.
4.3.3 The respondent submitted that, although they were not under any obligation to retain an unlicensed employee, they had a policy of allowing employees a 2-week unpaid grace period to resolve their difficulties with licence applications. If the employee failed to get a licence, then they were obliged to terminate their employment. The respondent submits that in this case, the complainant did not get his licence by 31 October 2008 and so they gave him an unpaid grace period to resolve it. They submit that when the issue was resolved a few weeks later, the complainant returned to the store, but the store manager was sick so the complainant was not permitted to resume work until he returned. The respondent submitted that it paid the complainant for the days he missed as a result of the store manager's sick leave.
4.4 Final Legal Submission
4.4.1 The respondent gave the Tribunal an analysis of the nationalities of the 16 employees who experienced difficulties or delays getting their licences. The analysis shows 6 Irish employees were affected and 10 employees of other European and African nationalities. In addition to the complainant, there was one other Polish employee affected. The respondent submits that their process for dealing with all 16 employees was the same. This process involved sending a letter to the employee, holding a follow-up meeting to explain the potential consequences, offering a two-week grace period and finally dismissing the employee if they are unable to produce the PSA licence.
4.4.2 Notwithstanding the support outlined above, the respondent submitted that the obligation to get the licence is entirely a matter for the employee themselves. The respondent is precluded (under Data Protection laws) from having access to any of the information which is exchanged between the applicant and the PSA during the application process. This information could include character references and the outcome of police background checks.
4.4.3 The respondent submitted that the matter involving the pay dispute was completely separate to the licence issue, and in any event, neither issue related to the complainant's race.
5. Conclusions of the equality officer
5.1 Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination in relation to him. If he succeeds in doing so, then, and only then, is it for the respondent to prove the contrary. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of "sufficient significance" before a prima facie case is established and the burden of proof shifts to the respondent. In deciding on this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the complainant. It is only where such a prima facie case has been established that the burden of proving there was no infringement of the principle of equal treatment passes to the respondent.
5.2 Section 6(1) of the Employment Equality Acts, 1998 to 2008 provides that 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)....." Section 6(2)(h) of the Acts defines the discriminatory ground of race as follows - "as between any 2 persons, ... that they are of different race, colour, nationality or national origins".
5.3 Pay Dispute
5.3.1 Both parties clarified during the oral hearing that the original dispute over pay was already settled and was not at issue in this hearing. However the complainant stated that the pay dispute affected his standing with his employer and influenced how they treated him with respect to the security licence.
5.4 Unpaid Leave
5.4.1 The complainant has claimed that the requirement for a licence was not a term of his contract of employment. I note however that the terms of any employment are subject to amendment by legislation. Therefore I accept that under the Private Security Services Act 2004, the complainant was obliged to hold the appropriate licence for the security industry, notwithstanding the fact that it was not mentioned in his contract.
5.4.2 The complainant has claimed that he was suspended without pay by the respondent. He claims that this was a disciplinary procedure, yet none of the normal safeguards with respect to disciplinary matters were afforded to him. Based on the respondent's evidence regarding the Private Security Services Act 2004, I find as a matter of fact that this was not a disciplinary issue. The respondent is prohibited under S.38 of the 2004 Act from employing a person who does not hold the correct licence. There was no evidence given by either side that there was any issue whatsoever regarding the complainant's behaviour, job performance or other disciplinary matter.
5.5 The complainant has claimed that the respondent was unduly harsh in forcing him to take unpaid leave to sort out his licence. He claimed that the respondent could have given him some sort of non-security work to do, for example stacking shelves. He said that other employees were thus accommodated. The respondent claims there was no obligation on them to even give unpaid leave in the circumstances. It did appear during the hearing that the respondent's attitude in the matter was somewhat harsh towards the complainant. However no evidence whatsoever was provided to demonstrate that this was connected to the complainant's nationality. In fact the complainant himself specifically said that they were hard on him because they were still annoyed with him about the pay dispute. Taking a step further back, I examined the matter to see whether the pay dispute could have been related to the complainant's nationality. I noted that the complainant did not dispute that the source of the dispute was the error on his original contract, nor did he dispute that the union-agreed rate was lower than his own. I noted that he held firm in seeking to maintain his higher rate and the respondent did not give in easily. Both parties were entitled to defend their positions, but it is clear that there was a loss of good relations in the process. The complainant's contention however is that Tesco would not have engaged in such a dispute with an Irish person, and that they tried to take advantage of him. I find no evidence whatsoever to support such a claim and I note the comments of the Labour Court regarding such "mere assertions" in the case of Melbury v Valpeters EDA 0917:
"Section 85A of the Acts 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 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."
Applying Melbury to the current case, I find that there were two factors which led to this situation between the parties; the pay dispute and the security licence. Both of these issues are entirely separate from the complainant's nationality and I find that they could have just as easily arisen with an Irish comparator or a person of any other nationality. I therefore find that the attempt to link them to the complainant's nationality is a mere assertion and not grounded in any facts.
5.6 The complainant has claimed that in a matter which was potentially serious enough to lead to his dismissal, some additional measures ought to have been taken in consideration of the fact that he is a non-national. I accept that this could well be a possibility in light of the Rasdaq v Campbell Catering case. However I note a number of distinguishing factors:
- The Campbell case involved a disciplinary matter, where factual evidence was in dispute. This situation was not a disciplinary matter and additionally there were no facts in dispute. (During the Tribunal hearing the complainant himself accepted that he had never in fact been told that it was a disciplinary matter.)
- The respondent was under no obligation to assist the complainant getting his licence, and it was in fact prevented from getting involved. Therefore any additional measures they took were voluntary and were for the benefit of the employees. The complainant has argued that his line manager could have tried harder to communicate with him about the consequences of failure to get a licence. It may have been the case that the manager should have gone beyond the formal communication, but no evidence was adduced that his failure to do so was related to the complainant's nationality, or that the complainant himself failed to understand the formal communication.
- Both the respondent and the complainant agreed that the complainant had a high standard of English and was fully able to understand all aspects of his work. At the oral hearing the complainant described in detail in English how he assisted in disciplinary matters within the Tesco store and gathered evidence against employees when required. I found the complainant to be fully competent in English throughout the hearing and I also found him to be knowledgeable on matters relating to investigations and disciplinary procedures.
- It is a matter of fact that the complainant did know what was required of him in terms of getting his licence, as evidenced by the fact that he did apply for the licence, he did get the "section 52" letter from the PSA and eventually he did get the licence (albeit a few weeks later than he hoped). The reason he was forced to take unpaid leave (the main subject of this case) was because his licence did not come through on time - not because he did not understand the process, through lack of competence in English.
- For the sake of completeness, I further considered whether it might have been more difficult for the complainant as a non-national to gather the required documentation for the licence (given that some information would have to come from Poland). However the respondent started the process in 2007 and I note that a large majority of employees of many nationalities did get their licences in time and a small number of employees (again of many nationalities, but the majority Irish) did not get their licences on time. Therefore I cannot find that the complainant was disadvantaged vis-à-vis his fellow workers, on account of being from Poland.
5.7 In summary, I find that the reason this case has arisen is because the personal communication between the complainant and his manager did not extend beyond the requirements of the job. Further, the complainant assumed the respondent would accommodate him with paid leave or alternative work while he waited for his licence. They refused, for reasons which may be questionable, but which are not in any way connected with the complainant's Polish nationality.
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: I find that the complainant has been unable to establish a prima facie case of discrimination with respect to his unpaid leave. Therefore his claim fails and I find in favour of the respondent.
__________________
Elaine Cassidy,
Equality Officer
5 August 2011