Employment Equality Acts
Decision DEC-E2012-058
PARTIES
Two Complainants
(Represented by Diarmuid Murphy, B.L.,
Instructed by Maguire McClafferty Solicitors)
- V -
A Respondent Contractor
File references: EE/2009/306 & EE/2009/311
Date of issue: 17 May 2012
Keywords - Employment Equality Acts - Discriminatory Treatment - Race - Gender - Prima facie case - Order under Section 82(1)(e) of the Acts
1. BACKGROUND
1.1 This dispute concerns a claim by the complainants that they were subjected to discriminatory treatment by the respondent on grounds of race and gender, in terms of Section 6 and contrary to Section 8 of the Employment Equality Acts
1.2 The complainants referred each of their claims of discrimination to the Director of the Equality Tribunal on 12 May 2009 under the Employment Equality Acts. On 12 March, 2012, in accordance with his powers under section 75 of the Acts, the Director delegated the cases to Conor Stokes - 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 a hearing on 23 March 2012. All written and oral evidence presented to the Tribunal has been taken into consideration when coming to this decision.
1.3 The present complainants made their complaints along with five other complainants. The other complainants failed to show up for the hearing and a separate decision issued relating to those complaints.
2. SUMMARY OF THE COMPLAINANT'S CASE
2.1 Both of the complainants submitted that they were employed by the respondent and are Polish and it is on this basis that these complaints are being taken. The complainants submitted that they were subjected to discriminatory treatment by the respondent when he spoke to them in an abusive fashion and used discriminatory language on 11 December 2008.
2.2 The complainants submitted that they recorded a conversation between the respondent and, amongst others, the seven complainants wherein he used language such as "stupid Poles", "f...ing brainless Polish monkeys" and "f...ing little girls" and "f...ing three musketeers.
2.3 The complainants submitted that reference to their nationality constitutes discriminatory treatment on the race ground while reference to the complainants as 'girls' constitutes discriminatory treatment on the gender ground.
3. SUMMARY OF THE RESPONDENT'S CASE
3.1 The respondent submitted that he refutes the allegations as totally without foundation and that they will not comment on any illegally obtained recordings.
3.2 The respondent submitted that there was wanton and criminal damage to a house being rented on behalf of a number of employees, that massive utility bills were run up and that the occupants allowed an accumulation of two tonnes of household waste resulting in complaints from the Health Board.
4. FINDINGS AND CONCLUSIONS OF THE EQUALITY OFFICER
4.1 The issue for decision by me is whether or not the respondent subjected each of the complainant's to discriminatory treatment, on grounds of race and gender, in terms of Section 6 of the Employment Equality Acts, and contrary to Section 8 of those Acts.
4.2 Section 85A of the Employment Equality Acts sets out the burden of proof which applies to claims of discrimination. It requires each of the complainants to establish, in the first instance, facts from which discrimination may be inferred. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised.
4.3 In the case of Dyflen Publications Limited and Ivana Spasic (ADE/08/7) the Labour Court, in adopting the approach of Mummery LJ in Madrassy v Nomura International plc [2007] IRLR 246, stated that "... the court should consider the primary facts which are relied upon by the complainant in their proper context. It also indicates that in considering if the burden of proof shifts the court should consider any evidence adduced by the respondent ..."
4.4 The complaint revolves around an incident that took place on 11 December 2008 wherein the respondent had a stand-up row with, amongst others, the complainants. The complainants recorded the row and submitted the recording to the Tribunal, however, the recording was not in an accessible format. The complainant's representative brought a copy of the transcript of the recording to the hearing but declined to submit it to the Tribunal. On that basis I find that I must infer from the evidence and testimony to hand how events transpired on the day in question.
4.5 One complainant stated that following a demand for unpaid holiday pay, he and other colleagues were thrown out of their home by the respondent who was very offensive, using terms such as "f...ing Poles", "f...ing Polish swine" and "f...ing Polish donkeys". The complainant also stated that he was not working for the respondent any more and that during his employment there were no other incidents.
4.6 This complainant confirmed that references to nationality were used in a joking manner regularly in the workplace by both the Irish and Polish employees but that no offence was either meant or taken. The complainant confirmed that when the respondent got rid of himself and his house-mates he did not get rid of all Poles in his employment, just the ones living in the same accommodation. The complainant confirmed that he had lived at the house for more than a year, that there was no problem with his work and he added that he could think of no reason why they were called names.
4.7 The other complainant gave evidence that was at variance with his colleague. He stated that the respondent did not come over in person to their accommodation, but rather insulted them by phone but could not remember the dates involved. He confirmed that he left the house one day before they all had to leave. He stated that the only reason that they had to leave their house was because they demanded monies due to them. He also stated that there were no problems before this in relation to his work.
4.8 The complainant's legal representative referred to a transcript of a recording of the argument which forms the basis of the current complaint, and put it to the respondent that he used terms such as "f...ing Poles", "f...ing Polish swine" and "f...ing Polish donkeys". The respondent confirmed that he may have used those or similar terms. He went on to outline that he had used those terms in the circumstances where a number of his employees had badly damaged a property that he had rented for them and had refused to work to make amends. The respondent stated that he had provided them with money for paint which they had not bought, and that they had made no effort to fix up the damage to windows and glass, furniture and furnishings, or to the painting and decoration of the house. The respondent stated that the people who lived in this house had amassed over two tonnes of household waste in the gardens of the house and that he did not consider them fit to live in a zoo. He stated that he told them so and that this may have given rise to the animal references used during the argument on the 11th. The respondent also stated that these employees refused to work on his construction sites and that in those circumstances, he was left with no option but to ask them to leave.
4.9 The respondent stated that he had come to the house to ensure that the complainant's left the property and that he was met by a large Polish man who proceeded to bait him with abusive language of a racist nature calling him a "f...ing Irish bastard" and making reference to his "f...ing Irish family". The respondent stated that unfortunately he replied in kind in the heat of the argument. To place this in context, the respondent stated that when he arrived at the house, he was faced by the ringleader of a group of workers who was a "6 foot 4, body builder" who was trying to intimidate him and in the circumstances he did not feel that he could back down. He stated that the recording would support his version of events and show that he was set up and that what he said to the ringleader was "you have two places to go if you hit me you big Polish monkey, prison or hospital" in a situation where they were 'squaring off' to one another. This version of events was neither contradicted by the complainants nor refuted by reference to their transcript of the recording of events.
4.10 The respondent stated that site language can be "colourful" and that any comments should be taken in that context rather than in the more refined context of the hearing room. He stated that if someone was being politically correct, no words of a similar nature should ever be used to anyone in an angry, demeaning way but that in the heat of an argument it is not always possible to watch what you say.
4.11 In addition, it arose from the evidence given by the respondent that one of the original seven complainant's to this claim had previous difficulties with alcohol, and although not working for the respondent at the time, the respondent made arrangements to have him admitted to rehab. During his time in rehab, the respondent became aware that the man's wife, in Poland, was having financial difficulties and made arrangements to send her some money to tide her over. This was confirmed for the Tribunal by the complainants present and it was indicated that the sum of money sent over was €500.
4.12 The complainant's representative suggested that the use of phrases such as "f...ing girls" or "big girl's blouse" amounts to discriminatory treatment on the gender ground. I can not accept that the suggestion of such name-calling gives rise to facts from which discrimination on the gender ground may be inferred. Accordingly, this aspect of the complaint fails.
4.13 I can not condone the use of racist language. I find it unusual that the exchange which is the subject of this complainant was recorded in circumstances where evidence was given by both sides that there had been no previous difficulties between the parties. On balance, I am inclined to agree with the respondent in that it appears that he was set up, by persons not a party to this decision, in order to take a complaint under the Acts. However, further to the Dyflen decision above, and having considered the evidence presented to me from all parties in context, I consider that the complainants have established facts from which discrimination may be inferred in the circumstances outlined to me. Accordingly, I find that this element of the complaint must succeed.
5. DECISION
5.1 Having considered all the written and oral evidence presented to me, I find that a prima facie case of discriminatory treatment on the race ground has been established by the complainants and this element of the complaint succeeds.
5.2 Having considered all the written and oral evidence presented to me, I find that a prima facie case of discriminatory treatment on the gender ground has not been established by either complainant and this element of the complaint fails.
5.3 Having regard to all the facts of this case and under Section 82(1)(e) of the Acts, I order that the respondent introduce procedures to eradicate any use of racist language in his employment within 6 months of the date of this decision and that those procedures include appropriate sanctions for persons who continue to use such language.
5.4 No other orders are being made under Section 82 of the Acts.
Conor Stokes
Equality Officer
17 May 2012