THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision DEC - E2011 - 241
PARTIES
Ms Iryna Karayashchenko
(represented by Audrey Coen, B.L.,
instructed by Augustus Cullen Law)
and
Arklow Bay Hotel
(represented by IBEC)
File Reference: EE/2008/804
Date of Issue: 16th December, 2011
Headnotes: Employment Equality Acts, 1998 & 2004, section 6,8, 14 and 77 - Section 6(2)(h), Race Ground - Section 8(1)(a), Access to Employment - Section 8(1)(b), Conditions of Employment - Section 8(1)(c), Training - Section 8(1)(d), Promotion/Re-grading - Section 77 Victimisation
1. Dispute
1.1. This case concerns a complaint by Ms Iryna Karayashchenko (hereinafter referred to as "the complainant") that she was discriminated against by the Arklow Bay Hotel ("the respondent") on the grounds of race contrary to section 6(2)(h) of the Employment Equality Acts ("the Acts") in relation to (i) access to employment, (ii) conditions of employment, (iii) training and (iv) promotion/re-grading, contrary to sections 8(1)(a), 8(1)(b), 8(1)(c) and 8(1)(d), respectively, of the Acts, and that she was victimised by the respondent contrary to Section 74 of the Acts.
2. Background
2.1 The complainant referred a complaint under the Acts to the Director of the Equality Tribunal on 25th November, 2008 alleging that the respondent had discriminated against her on the ground of race and had victimised her.
2.2 On the 8th February, 2011, in accordance with his powers under section 75 of the Acts, the Director delegated the case to me, Gary O'Doherty, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions under Part VII of the Acts, on which date my investigation commenced. Written submissions were received from both parties. Supplementary submissions were provided shortly before the first day of hearing. Hearings of the complaint were held on 8th April, 2011, 12th April, 2011 and 6th September, 2011.
3. Summary of the Complainant's case
3.1. The complainant is a Ukrainian National. She submitted that she was employed in the Arklow Bay Hotel and Leisure Centre on 19th April, 2002 as an accommodation assistant. She submitted that she continued to work at the respondent's hotel until she was required to go on certified sick leave due to work-related stress and personal injury on 28th July, 2008.
3.2. The complainant submitted, inter alia, that she did not receive any proper health and safety documentation, training or contract of employment. She submitted that following the decision of the Tribunal in 58 Named Complainants -v- Goode Concrete , there is a requirement to furnish a foreign national with a Health and Safety statement and contract of employment in a language likely to be understood by them.
3.3. In that context, the complainant stated that she did receive induction training in so far as she was told where to go and what to do. She also stated that she was just told how much she was paid and the amount of hours she was required to work in a day. She also stated that her knowledge of English was basic at the time. She submitted that she signed a Statement of Terms and Conditions on 22nd June, 2004, but this was two years after she commenced her employment with the respondent. She also said that while Ms A, a Manager with the respondent, said that a member of staff went through the handbook, the language used in employment law is different to everyday language. She said she did not know if anyone else received a contract of employment and that the respondent's evidence showed that Ms B, the respondent's Housekeeping Manager, had not even read the handbook.
3.4. The complainant gave an account with respect to her submission that when she first came to work at the Arklow Bay Hotel she was housed through the auspices of the respondent, but that she was later required to move to another house which she was forced to leave because of its long distance from the hotel. She also gave an account of a dispute which arose in that context with respect to the payment back to the respondent of the deposit for this house, which was carried out through deductions from her salary.
3.5. The complainant gave an account with respect to her submission that, after working at the respondent's hotel for a few months, one of her fellow Ukrainian workers found employment in another better-paid position. She submitted that, when this happened, a meeting was convened by the respondent with all Ukrainian workers at which they were told that they could not leave their employment at the hotel as this would have implications for their work permits and the police would get involved if they did so. She submitted that she was intimidated by these statements from management. The complainant also referred to an issue that arose with respect to a second job she took up in November 2007 when she said that the respondent told her that she would be "in big trouble" for taking this job because of her work permit.
3.6. The complainant also submitted that she was never given a day off on one of the busier days, (i.e. Monday, Friday or Saturday), while Irish workers, working in the same capacity as her, were assigned these days off. The complainant agreed that she had been given time off on weekends to attend a course.
3.7. The complainant also submitted that Ms B, and others, including members of the management team, "embarked on a campaign of picking-on and discriminating against her." She gave a detailed account of her allegations in this respect, in particular stating that a co-worker, Ms C, "picked" on her. She also described how Ms B spoke to her in what she alleged to be a demeaning tone of voice. She stated that she made a complaint to the respondent about her treatment by Ms B and another Manager, Ms D. She said that Ms D told the complainant that she had been "grassing" on her. She said that her treatment by Ms B and Ms D in particular left her very upset. The complainant submitted that her treatment by Ms B in this respect was not as a result of unsatisfactory work by the complainant but because of the fact that initially she was new and afterwards because she was Ukrainian.
3.8. The complainant also stated that Ms A told her that "if she sent her on the roof, she would have to work on the roof" and that she said this using a "superior" tone. She said that Ms A meant by this that she had to work like a slave.
3.9. The complainant also submitted that there was a campaign of victimisation against her which consisted of her being assigned the "dirtiest" of cleaning tasks. She described these tasks in detail at the hearing, including cleaning the men's toilets when there were weddings taking place in the hotel. She submitted that Irish cleaners were never given these tasks. She said that she was in the hotel nearly every day when everyone else was gone home.
3.10. The complainant also stated that she was asked to work in the lobby as well as housekeeping and no Irish person was asked to do both. She said that there were "red circled" duties that had developed through custom and practice and that the respondent had a specific policy that Irish workers were not rostered to do lobby work. She stated that she was told by "the Polish workers" that she only had to work in both lobby and housekeeping for two years but that she was still doing both even after she had worked for that length of time.
3.11. The complainant gave a detailed account of the circumstances surrounding her taking on additional work in the respondent's Leisure Centre and issues that arose concerning her working hours in that respect as well as the impact it had on her work as an accommodation assistant. The complainant stated that she did not get paid for overtime she had worked in the respondent's Leisure Centre until 2006. She said that she had to pursue this matter herself. She added that she did not envisage that an Irish person would be told (as she said she was) that they were not due overtime because it was two different buildings as that Irish person would be "more savvy" of their employment rights. She stated that she did eventually receive the money in question.
3.12. The complainant also stated that Irish accommodation assistants, in particular Ms C and Ms E, were always allocated what she identified as being the "easier" corridors. In this respect, she gave a detailed description of the difference between the work on the "easier" corridors and that of the other corridors. She stated that she complained to Ms B about her allocation of work in this respect. She stated that the respondent's own evidence was that whoever turned up first would take the list and do the rooms (while she was rostered later on the accommodation roster because she was working in the Leisure Centre). She said that this meant that she was given the more difficult corridors to work on and that this was different treatment to that afforded Irish employees.
3.13. The complainant further submitted that when another cleaner finished working on a different, "easier" corridor of rooms, she was not given the option of rotating to this corridor. Instead, she submitted that it was assigned to Ms E, who was employed in the same capacity as her but did not have her experience. She submitted that this was an issue of access to employment as a vacancy had arisen and had been allocated to Ms E. She stated that she had not applied for promotions and outlined the reasons why she did not do so.
3.14. The complainant gave an account of occasions when she was ill and where certain issues arose. In particular, she gave an account of an occasion when she was required to provide a sickness certificate to the respondent on the day that she was sick which, she stated, an Irish worker would not have been asked to do. She stated that, on another occasion, she developed a pain in her back but did not report this to the respondent at the time.
3.15. The complainant gave a detailed description of the effects of the alleged discrimination on her. She said she could not remember whether she told the respondent that she considered that her treatment by it was related to her nationality but added that it is not required that she say that she considered she was being discriminated against in order to establish her prima facie case, nor was it required that the acts in question were done with the intention to discriminate. She said that the choice she had was to do the work she was allocated or return to Ukraine as the work permit was limited to the role she was hired for by the respondent. Finally, the complainant raised a number of questions with respect to the consistency of the respondent's evidence, in particular that of Ms A. She said that, in light of the evidence that she herself had given, she had established a prima facie case of discrimination.
3.16. The complainant also submitted that she was victimised by the respondent for lawfully opposing unlawful discrimination. She submitted that she was punished when she complained that she was never allowed to rotate from a different corridor and for inquiring as to why Irish staff were never assigned lobby clean-up. She submitted that she was further victimised in the manner in which her superiors spoke to her.
4. Summary of the Respondent's case
Evidence of Ms A
4.1. Ms A gave evidence to the Tribunal. She stated that she was the General Manager of the hotel since 2003. She said that the complainant received induction training when she arrived, which consisted of a member of staff going through the handbook, health and safety and terms and conditions of employment with her and the other workers who arrived when she did. She said that, at the induction, "the people" would nominate someone who could translate/interpret these documents. She said this was the same for all staff. She also said that the complainant had good English in any event, though she accepted there was a difference between written English and conversational English. She said that the complainant never raised a query about not understanding these documents. She added that there were regular updates on health and safety posted on the staff notice board.
4.2. Ms A outlined the arrangement with respect to the accommodation it assisted in arranging for the complainant and responded to the issues the complainant raised in that respect. She said she did not recall the comment the complainant alleged that she made about working on the roof (see par. 3.8 above) and denied that she would have said it. She said that she did tell the complainant that she was worried about the fact that she was in breach of her work permit when she was working in a shop, but stated that she was not angry or intimidating in that context. She denied that she ever intimidated the complainant.
4.3. Ms A outlined the grievance procedures that applied in the hotel and how they were outlined to staff. She said she was not aware of the alleged problems between the complainant and Ms C. She stated that the "red circling" was the result of custom and practice that was there since before she started. She denied there was any policy to only require workers to do lobby and accommodation assistant for two years and said that everyone did both. She said that the complainant was taken off the Leisure Centre roster within two weeks of making a complaint about it in writing to her.
Evidence of Ms F
4.4. Ms F also gave evidence to the Tribunal. She stated that she was accommodation assistant manager from 2004 to 2007 and she outlined her responsibilities in that respect. She stated that she decided who did what corridor and the workers involved then chose rooms themselves. She denied that certain persons were always allocated the same corridors to work in. In that context, she added that the older rooms were only used at busy times and said that the complainant did work in the newer rooms (i.e. the rooms the complainant alleges were easier). She said that each floor had a different type of room but that the rooms were all the same size. She then described the differences in the rooms. She said that she would not have asked the complainant to do jobs that other employees were not asked to do.
4.5. Ms F said she would do the roster together with Ms B but Ms B had more influence on those rosters. She stated that there was some cross-over between working in rooms and in the lobby and outlined how this was arranged. In particular, she stated that staff employed later had lobby work included in their terms and conditions while other staff just did bedrooms, but all workers did the lobby when they were finished with rooms. She also said that the workers who only did rooms were Irish. She stated there were Irish workers who were rostered for the lobby and gave an account of the working hours of a number of named Irish employees in that context and the work done by them. She said that everyone worked weekends and added that the complainant's relationship with Ms B was good
Evidence of Ms D
4.6. Ms D also gave evidence to the Tribunal. She stated that she started working for the respondent as accommodation Manager in 2008. She said that, when she arrived, the allocation of corridors were decided according to how many rooms needed to be cleaned and that originally Ms B decided who went to what corridor, but that she then decided this. She also described how she subsequently changed the system for allocating rooms. She said she did not remember if the same housekeepers always did the same corridors but did not think they did and said that Ms B never told her that certain girls did certain corridors. She said she did not recall the complainant raising any issue with the allocation of work in that respect with her. She also gave an account of the shifts that the complainant had worked while she was her manager.
4.7. Ms D said that when she asked the complainant on the last day she worked there whether she was ok, she replied that she was not very happy. She said that this was the first time that the complainant had indicated she was unhappy and that she did not raise any issues with her working arrangements before then. She said she was not aware the complainant was not getting on with any other member of staff, including Ms C. She said that no complaint was made against her by the complainant and nobody ever spoke to her about such a complaint. She said that the word "grassing" is not in her lexicon and she never said it. She said that the complainant never said she was being treated less favourably because she was Ukrainian.
Evidence of Ms B
4.8. Ms B also gave evidence to the Tribunal. She said that, in the time she was a manager, she would delegate rooms by first getting the list of rooms to be done, and then sending one or two members of staff to each corridor. She said the corridors were all the same and all had to be cleaned to the same standard and that the complainant never raised a concern with her about finding some rooms more difficult than others. She said that everyone did every corridors and went where she put them and, in that context, that it was untrue that Ms E and Ms C did more of the allegedly easier corridors.
4.9. Ms B said she was not aware of any policy of people not having to work in the lobby after two years. She said that "most girls" worked in the lobby and on rooms, including Irish workers. She said there were no staff members who did not work in the lobby at all. She said that Ms C, Ms E and another named Irish worker, Ms G, were not put on the lobby roster but they did do the lobby. She said she did not know who had told her not to assign them to the lobby roster. She said she was not aware that the complainant did not want to work in the lobby. She added that she recalled the complainant asking for a male assistant to assist her with the cleaning of the men's toilets and that she was facilitated with such an assistant.
4.10. Ms B said, with respect to requests for leave, that if someone wanted the day off they got it, even at weekends. She agreed that Ms C and Ms G were generally given time off in August. She also said that she facilitated the complainant in attending a health course at weekends. She said she vaguely remembered something about the complainant being asked to bring in a sick note on the day she was sick but did not know if this was company policy.
4.11. Ms B said she never saw the complainant and Ms C arguing and never saw Ms A speaking to the complainant in an intimidating manner. She said she had a very good working relationship with the complainant and did not treat her any differently to any other member of staff. She said her tone of voice was the same to everyone. She said that she considered that the complainant had good English. She said that she was not aware of the respondent's grievance procedure.
General Summary
4.12. The respondent submitted that the complainant commenced working with a group of Ukrainian employees and received induction in line with legislation in existence at that time. It submitted that the complainant signed a number of documents, including a statement of terms and conditions of employment, in June, 2004, and received an employee handbook. It submitted that updated terms and conditions were signed by her in 2006.
4.13. The respondent submitted that the complainant has failed to establish any facts from which it may be presumed that she was discriminated against. It submitted that she has not identified anyone of a different race, colour, nationality or ethnic or national origin who she was or has been treated less favourably then. It stated that there was a use of colourful and emotive language in the complainant's testimony and every single point could be disregarded in light of the documentary evidence it provided to the Tribunal. It went through the complainant's evidence in that context. In particular, it said that the complainant had failed to show where Irish nationals refused to do the duties she said she was asked to undertake and which she claimed were discriminatory. In short, it stated that the complainant had failed to establish a prima facie case of discrimination.
5. Conclusions of the Equality Officer
5.1. Section 85A of the 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/her. If he/she 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. Therefore, in deciding on this complaint, I must first consider whether the existence of a prima facie case has been established by the complainant. It is only where it 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 Acts 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 two persons ..... that they are of different race, colour, nationality or ethnic or national origins.." It follows therefore that the complainant must be the subject of less favourable treatment in comparison to another person on grounds of nationality i.e. because she was Ukrainian.
5.3. The issues for decision by me in this case, then, are (i) whether or not the respondent discriminated against the complainant on grounds of race, in terms of section 6(2)(h) of the Acts and contrary to section 8 of the Acts in terms of conditions of employment and/or access to employment and/or promotion-re-grading and/or training, and (ii) whether the respondent victimised the complainant in terms of Section 74 of the Acts. In making my decision in this case, I have taken cognisance of all the oral and written submissions made by the parties.
Access to Employment and/or Promotion/Re-grading
5.4. I am satisfied that, per se, there was no vacancy in or promotion to the "easier" corridors as alleged by the complainant. In that context, this is a matter to be considered under conditions of employment and is so considered. There are no other matters relating to promotion/regrading to be considered by the Tribunal as the complainant stated that she did not apply for any promotions and did not give any evidence that there was a discriminatory reason for not applying for same.
5.5. Access to employment claims relate to cases of recruitment or entry to employment. In this claim the complainant was already working for the respondent and her claims in relation to the time she was working for the respondent will be considered in the context of conditions of employment. In that context, the complainant has failed to establish a prima facie case of discrimination with respect to either access to employment or promotion/re-grading.
Conditions of Employment
Contract of Employment
5.6. It is clear that the complainant was provided with a contract of employment and work handbook at the same time as all other members of the respondent's staff. I am also satisfied that the respondent provided the complainant with access to a Ukrainian worker who was in a position to interpret/translate with respect to any issues arising from her contract of employment and/or the handbook provided by the respondent in that respect and that an opportunity was provided by the respondent to ask any questions of it with respect to anything the complainant did not understand in that respect. I am also satisfied that the complainant understood the updated terms and conditions that were issued in 2006.
5.7. In that context, I am satisfied that the complainant was provided by the respondent with sufficient opportunity to raise any question she might have with respect to the documents in question with someone who spoke a language she understood. Therefore, I am satisfied that, in accordance with a number of recent decisions of the Tribunal, the respondent set out and followed appropriate procedures that ensured that, in so far as the complainant did not fully understand the terms and conditions of her employment as laid out in her contract of employment, she was provided with a suitable opportunity to become fully aware of those terms and conditions, as well as the rights that were provided within that contract. She has failed to establish a prima facie case of discrimination in that context.
Accommodation
5.8. With respect to the issues surrounding the accommodation obtained for the complainant, this is primarily a dispute about rent, deposits and to what extent the respondent was responsible for these matters. The only matter for me to decide in this respect is whether the complainant was discriminated against because she was Ukrainian. On balance, I am not satisfied that the complainant has elicited facts from which it can be presumed that her nationality was a factor in any of the actions taken or decisions made with respect to these matters. In that context, she has failed to establish a prima facie case with respect to this aspect of her claim.
Work Permit Issue
5.9. With respect to the issues surrounding the complainant's work permit, I am satisfied that the issues that were raised by the respondent in that respect were raised with any member of staff who was working for it under a work permit irrespective of the nationality of that person. While this treatment was not treatment that was applied to Irish people, it cannot be said, in all the circumstances of the present complaint, that Irish workers were in a comparable situation to the complainant in this regard as they are not subject to work permits. Therefore, the complainant has failed to establish a prima facie case of discrimination in that respect.
Issues with co-workers and/or managers
5.10. The complainant also submitted that she was discriminated against with respect to her specific treatment by particular members of the respondent's staff, in particular Ms A, Ms B and Ms D. The complainant alleges that she had a number of issues and disputes with these co-workers and/or managers as already outlined, in terms of the way in which she alleges that they spoke to her, and it is not necessary to repeat them all here.
5.11. The complainant is correct in stating that she does not necessarily have to show that she claimed to the respondent that she was being discriminated against in this respect. However, she does have to establish facts of sufficient significance to show that her treatment by those members of staff in that respect was related to her race (i.e. that she was treated in the manner in which she was treated by them because she was Ukrainian). I am not satisfied that she has done so with respect to any of the alleged issues, disputes and/or conversations in question, even if I were to accept that these incidents actually occurred. She has failed to establish a prima facie case in that respect and I do not need to consider this matter any further.
Allocation of Leave
5.12. It is clear that Ms C and Ms E, and possibly Ms G, were treated differently to other workers. In particular, I note that they received more favourable treatment with respect to the allocation of leave in that I am satisfied that they were facilitated with holidays at particular busy times when others were not so facilitated, including the complainant.
5.13. It is clear that this was part of a policy carried out by the respondent which it referred to, inaccurately, as "red circling", though it sought later in the hearing to deny that this was its practice and that the Tribunal had misunderstood its submission in that respect. However, the respondent's submissions in this respect were inconsistent and contradictory and it is clear that it did carry out such a "red circling" policy. (I would add that this policy was one agreed with the particular individuals concerned and was not in any way, shape or form an agreement negotiated under any industrial relations mechanism.)
5.14. Nonetheless, it is also clear that the special treatment afforded to Ms C, Ms E and Ms G in this respect was not provided to any other member of staff, including other Irish workers. I am satisfied that they were treated more favourably in this context because they were longer serving members of staff, even though Ms E had left and come back. I also note that the complainant was given time off at weekends to attend a training course, though I also note that this was at a quieter period in the hotel's working year. In all the circumstances of the present complaint, then, I am not satisfied that these facts are of sufficient significance to establish a prima facie case of discrimination that the complainant was treated less favourably than Ms C, Ms E and/or Ms G because of her nationality, at least with respect to the issue of the allocation of leave.
Working Hours/Particular Jobs
5.15. It is clear that most of the additional working hours which the complainant carried out which were in excess of those undertaken by comparable co-workers were working hours for which she had volunteered and/or had been agreeable to engage in. I am satisfied, with respect to the tasks and/or responsibilities that she was otherwise required to do, that Irish workers were required to carry out the same tasks/responsibilities. It is clear that Ms C, Ms E and Ms G were treated more favourably by not being asked to work in the lobby. However, and as already outlined, I am not satisfied that there is sufficient evidence to show that the reason why that was the case was because of their nationality. In that respect, I note that there clearly were other Irish workers who were required to work both in the lobby and as accommodation assistants.
5.16. There were jobs which the complainant was asked to do which others were not asked to do, such as working in the Leisure Centre. However, it is clear that the reason why she was asked to do those jobs was because the standard of her work was so high and, when she asked to discontinue working on those jobs, her request in that respect was granted. Furthermore, it is clear that she had no objection to carrying out these additional roles and I am satisfied that if she had raised such an objection she would not have been required to carry those roles out. I am also satisfied that where she raised issues of concern (e.g. with respect to having to work in the men's toilets) and/or sought assistance in that respect, these matters were addressed by the respondent.
5.17. In short, I am satisfied that the complainant was not required to do any job that workers of other nationalities, including Irish workers, were not also asked to do. I am also satisfied that her treatment with respect to those jobs she agreed to undertake which others were not asked to do was not less favourable than the treatment someone else would have been afforded in the same or similar circumstances. Therefore, the complainant has failed to establish a prima facie case that she was discriminated against by the respondent with respect to this aspect of her claim.
Overtime
5.18. With respect to the issues surrounding payment of overtime to the complainant, I note that, in accordance with Section 8(6)(a), complaints relating to remuneration are excluded from consideration under conditions of employment. Such complaints must be made as part of an Equal Pay claim, and such a claim has not been made to the Tribunal. Therefore, I have no jurisdiction to consider this matter.
Corridors
5.19. I am satisfied that the complainant was sincere in her belief that the Irish accommodation assistants in question (Ms C and Ms E in particular) were provided with work on the "easier" corridors. However, I also note that she accepted that this only occurred at busy times as the allegedly more difficult corridors were not used unless it was busy. Furthermore, having heard the evidence of the respondent in that respect, I am not satisfied that the evidence of the complainant stands alone as being of sufficient significance to establish that this was the actual practice of the respondent. In particular in that respect, while the respondent's practice was not clearly laid out prior to the arrival of Ms D, there is no clear evidence either way that Ms C and Ms E were provided with work on the "easier" corridors, or even that the allegedly easier corridors were, in fact, easier to clean.
5.20. In short, I am satisfied that the complainant had a perception that she was treated less favourably by being required to work on the allegedly more difficult corridors more often than the named comparators. However, I am not satisfied that she has proven, on balance, that this was the factual situation. She has failed to establish a prima facie case of discrimination in that context.
Illness
5.21. I note that the complainant stated that, prior to taking long-term sick leave, she had not mentioned to the respondent about a particular named injury. Therefore, she cannot have been treated less favourably by the respondent in that respect because it was not aware of the problem. With respect to the other issues surrounding her treatment by the respondent with respect to obtaining medical certificates, time off for illness and, in short, being facilitated with less demanding work or other relief at work where she was ill or injured, I am not satisfied that the complainant has elicited any facts from which it can be presumed that her treatment in this respect was related to her nationality.
Training
5.22. There is no evidence that a person in a comparable situation to the complainant received any training which she did not receive. I also note that the complainant was facilitated by the respondent by being provided with changes to her working hours when she sought to participate in a training course which was unrelated to her work. In all the circumstances of the present complaint, then, I am not satisfied that the complainant has elicited any facts from which it can be presumed that she was discriminated against with respect to training. Therefore, her complainant in this respect fails.
Victimisation
5.23. It is correct for the complainant to say that, in order to prove her claim of discrimination, she does not necessarily have to show that she claimed to the respondent that she was being discriminated against. However, in all the circumstances of the present case, her claim of victimisation requires that she at least told the respondent at some point that she considered that her nationality was the cause of her alleged less favourable treatment. It is clear that the complainant did not do so. In that context, her claim of victimisation cannot succeed.
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 2011:
6.2. I find that the complainant has failed to establish a prima facie case that the respondent discriminated against her on the race ground pursuant to section 6(2)(h) of the Acts in terms of access to employment, contrary to S.8(1)(a) of the Acts.
6.3. I find that the complainant has failed to establish a prima facie case that the respondent discriminated against her on the race ground pursuant to section 6(2)(h) of the Acts in terms of conditions of employment, contrary to S.8(1)(b) of the Acts.
6.4. I find that the complainant has failed to establish a prima facie case that the respondent discriminated against her on the race ground pursuant to section 6(2)(h) of the Acts in terms of training, contrary to S.8(1)(c) of the Acts.
6.5. I find that the complainant has failed to establish a prima facie case that the respondent discriminated against her on the race ground pursuant to section 6(2)(h) of the Acts in terms of promotion/re-grading, contrary to S.8(1)(d) of the Acts.
6.6. I find that the complainant has failed to establish a prima facie case that the respondent victimised her in terms of Section 74(2) of the Acts;
6.7. The complainant's case fails.
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Gary O'Doherty
Equality Officer
16th December, 2011