The Equality Tribunal
Employment Equality Acts 1998 to 2011
EQUALITY OFFICER'S DECISION
NO: DEC-E2011-255
Parties
Rita Miskel
(Represented by Grogan and Associates Solicitors)
V
Brandwell Ireland Limited
File No. EE/2009/820
Date of Issue: 23 December 2011
Employment Equality Acts -Discriminatory treatment - Conditions of employment - Training -Gender - Race- Prima Facie Case
1. Dispute and delegation
1.1 This dispute concerns a claim by Ms. Rita Miskel (hereafter "the complainant") that she was subjected to discriminatory treatment by Brandwell Ireland Limited (hereafter "the respondent") on the grounds of her gender and race.
1.2 The complainant referred a claim of discrimination to the Director of the Equality Tribunal on 10 November 2009 under the Employment Equality Acts. On 6 December 2011, in accordance with his powers under section 75 of the Acts, the Director then delegated the case to Tara Coogan- 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 proceeded to hearing on 14 December 2011.
2. Case for the complainant
2.1. The complainant, a Lithuanian national, started working with the respondent company in or about 2006. Her job title was that of a 'warehouse operative'. The complainant resigned from the company in 2009 because she says that working there was damaging her health.
2.2. The complainant claimed that she was required to work in a location where there were no heaters or a carpet. The complainant maintains that Irish women worked in a location where heating and carpets were provided. She was expected to lift up 25 kg boxes up 2 meters high whereas Irish women were engaged only in pricing. Such women did not have to lift boxes and were entitled to carry out their duties next to heaters. The complainant also claimed that the lighting was at times poor because some of the lights would have gone out. This she said had affected her eyesight. The complainant submitted that she had to work in such poor conditions because of her nationality.
2.3. The complainant also maintained that Irish people were allowed to arrive late while she was not. She also claimed that she was told that's he could not go to a doctor and that one time, when her wallet had been stolen elsewhere, the manager would not allow her to take time off to sort out the paperwork. The complainant had to ask a woman working in the administration office about her situation and this woman finally let her go to the bank.
2.4. The complainant also argued that other staff would laugh at her if she did not understand something. No specifics of such an incident were provided.
3. Case for the respondent
3.1. The respondent is a designer and importer of various goods. It operates a large warehouse where goods are received from the importer(s), prepared for the relevant market, and distributed to retailers in Ireland and the United Kingdom.
3.2. The respondent denies any discrimination. The respondent employs both men and women, of various nationalities. It was submitted that the complainant has been treated both fairly and equally throughout her employment with the respondent.
3.3. It was accepted that the three women the complainant was referring to, all of whom were Irish, were at the material time engaged in 'pricing'. The complainant, who had joined the company later than these women, had been engaged to work in 'picking'. While all staff in the warehouse are called 'warehouse operatives' in reality the job is divided into two roles: 'pricing' and 'a picking'. 'Pricing' consists of stationary work whereby the goods received from the exporters are checked and repacked so that they are suitable to be dispatched to retailers. These 'priced' items are then placed on the correct shelves by the persons engaged in 'picking' who also collect them when filling orders received from the retailers. The complainant was responsible for the sunglasses but she would have naturally 'picked' other items in accordance with the orders.
3.4. The warehouse, that has three floors, extends to 15 000 square feet per floor. It is impossible to heat all parts of it and it is accepted that when particularly when the doors are open it can get cold inside. The respondent does all it can to ensure that the doors are only open when necessary. Similarly, it was accepted that sometimes a light bulb may have gone out in places but that they were replaced regularly.
3.5. At the material time, all the other 'pickers' employed by the respondent were male and from various backgrounds, including Irish, English and Polish. It was accepted that at busy times the complainant and other pickers would be asked to engage in 'pricing' and at such times, a makeshift table would be assembled to facilitate this.
3.5. The complainant has already been compensated for not being provided with a formal contract within 2 months of commencing her employment. The respondent denies that the complainant, who speaks very good English, experienced any less favourable treatment because the contract was in English.
3.6. The complainant has been provided with health and safety training and documentation. The complainant has not provided any evidence to support an argument that she has experienced any less favourable treatment in relation to same.
3.7. The complainant has been treated in a similar manner as all other employees. No evidence of any less favourable treatment has been provided. The respondent rejects the complainant's opinion in relation to a 'notional' Irish comparator.
3.8. The respondent was surprised to hear that the complainant had resigned from the company as it has not been informed of this decision. They had understood the complainant was on extended sick leave.
3.9. The respondent denied mocking the complainant's ability to speak English.
4. Conclusion of the equality officer
4.1. In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to Section 85A of the Employment Equality Acts 1998 to 2008. 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. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. The Labour Court elaborated on the interpretation of section 85A in Melbury v. Valpeters EDA/0917 where it stated that 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".
4.2. During the hearing it became clear that the complainant was comparing her working conditions with a group of individuals who had different job with the respondent. While it is clear that the complainant believes that she had been badly treated by the respondent, it is clear that she has been unable to provide any facts for the purposes of this Act. I am satisfied that the complainant was treated exactly the same as other employees - regardless of gender or race - engaged in the same role as the complainant.
4.3. I note that the complainant had not referred a claim for harassment in her original complaint and no further facts relating to her claim that she was laughed at were in the submission. At the hearing she stated that her supervisor had laughed at her sometimes when she did not understand something. This was denied by the respondent. I find that such statements are outside this investigation as it is impossible to investigate such a vague claim particularly when no allegation of harassment has ever been made. Furthermore, I find that the complainant was unable to provide any credible evidence about her claim that a male Irish colleague was entitled to be late while she was not. I am satisfied that any staff member working with the respondent, regardless of gender or race, who wanted to request discretionary time off to attend to personal matters would similarly need to approach management in the manner that the complainant said she had to.
4.4. The other matters referred to above were not pursued by the complainant at the hearing.
5. Decision
5.1. Having investigated the above complaints, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts:
5.2. I find that the complainant has not established a prima facie case of discrimination on the race or gender ground. Therefore, the case fails.
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Tara Coogan
Equality Officer
23 December 2011