The Equality Tribunal
EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E2014-88
PARTIES
Stephen Saunderson
(Represented by Mr Brendan Archbold)
AND
Irish Rail
File reference: EE/2012/422
Date of issue:16 December 2014
HEADNOTES: Employment Equality Acts, , Sections 6 and 8 –Race - Conditions of Employment.
1.DISPUTE
1.1. This dispute involves a claim by Mr Stephen Saunderson (“hereinafter referred to as the complainant”) that he was discriminated against by Irish Rail(“hereinafter referred to as the respondent”) on grounds of religion race and age, in terms of section 6(2) of the Employment Equality Acts, 1998-2011 (“hereinafter referred to as ‘the Acts”). when the respondent did not promote the complainant, failed to provide training and failed to appoint him on a short term basis to positions of responsibility. The complainant also claims that he was subject to harassment in accordance with section 14 of the Acts.
1.2. The complainant referred his claim to the Director of the Equality Tribunal on 8 August 2012 in relation to promotion, training and harassment. On 14 February 2014, in accordance with his powers under section 75 of the Acts, the Director delegated the case to me, Peter Healy, 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. Submissions were received from both parties. In accordance with Section 79(3A) of the Acts and as part of my investigation I proceeded to a hearing on 21 March 2014. Final submissions were received on 30 April 2014.
2. COMPLAINANT'S SUBMISSION
2.1. The complaint, who is British and a member of the Presbyterian Church, commenced employment with Irish Rail in February 2000 and was appointed as a permanent Special Class Supervisor on 16 September 2002 and was based in Athlone. The complainant submits that while in Atlone he encountered Supervisor A and Supervisor B, both of whom were senior to him and operated in a supervisory role.
Incidents relating to 2001
2.2. The complainant submits that he worked under the immediate supervision of Supervisor A and that resentment towards him became evident within a number of weeks. In particular the complainant submits that Supervisor A would give him incorrect directions to locations where he was required to fix electrical faults resulting in significant difficulties for the complainant.
2.3. The complainant submits that on one particular occasion, Supervisor A left the complainant alone to work on a critical job that required more than one person and for which he did not have any experience.
2.4. The complainant submits that he became aware through other colleagues that he was being kept ignorant, by Supervisor A, of job opportunities within the organisation.
2.5. The complainant submits that he was subject to many sarcastic and offensive remarks by Supervisor A in particular who told the complainant that he was either “lazy” or “incompetent”. The complainant submits that such comments were generally delivered in front of other employees.
2.6. The complainant submits that a colleague made him aware that Supervisor A had made making remarks that Northern Protestants were not welcome in the company. The complainant submits that hearing of this remark provided him with some understanding of the behaviour of Supervisor A that he had been experiencing. Events came to a head in 2001 with a heated argument between the complainant and Supervisor A. The complainant put it directly to Supervisor A that he was motivated by a hatred of his county and religion. The complainant submits that Supervisor A made no attempt to deny this allegation.
2.7. The complainant submits that he submitted a formal complaint to HR about Supervisor A but that he was dissuaded from mentioning religion in that complaint by Supervisor B. The complaint submits that (to the best of his knowledge) an official investigation took place but that he was prevented from attending because the respondent sent him on a training course.
Incidents from 2004 onwards
2.8. The complainant submits that from 2004 onwards he was overlooked on a number of occasions when a temporary supervisory post arose. The complainant submits that the decision to exclude him was taken by two superiors known to him ( neither of which are Supervisor A or B) and that personnel junior to him (specifically an apprentice) were appointed to the position.
Incidents from 2011 onwards.
2.9. In 2011 the complainant was unsuccessful when he competed for two promotional opportunities. He submits he that had to wait for eight months in respect of one competition and one year in respect of another before the respondent informed him that he had been unsuccessful.
3. RESPONDENT'S SUBMISSION
3.1. The respondent submits that the issues raised are Statute Barred as eleven years have passed since the issuing of the complainant letter of complaint about Supervisor A, which then submit he subsequently withdrew. Regardless, the respondent rejects all aspects of the complaint.
3.2. The submit that the investigation which the complainant refers to as the one that he was forced to miss was in fact an investigation on foot of a separate complainant by another employee against the Supervisor A.
3.3. The respondent submits that in relation to the matter of temporary assignment to supervisory roles,
- It was a matter for line managers to make such appointments
- The role has never been filled by an apprentice
- The relevant line managers have no recollection of the complainant ever requesting such a temporary assignment.
3.4. In relation to the issue of promotions the respondent admits that candidates involved in certain procedures did not receive any communications. Following a review by their HR department, communications were sent to all individuals involved in the two relevant processes almost a year after interviews had been held. The respondent submits that at no time were the beliefs or nationality of individuals used in determining who should fill positions.
3.5. The respondent submits that relevant bullying and harassment policies were in place at the relevant times.
4. FINDINGS AND CONCLUSIONS OF THE EQUALITY OFFICER
4.1 At the hearing I allowed the complainant the opportunity to present any evidence relating to a period before referral of the complaint including events as far back as 2001 in order to establish if any link exits to more recent events. The complainant provided no reason to explain a delay in referring the complaint. From the complaints submission it is clear that the individuals involved in the events of 2001 and 2006 were not involved in the more recent allegations. A very significant time period has elapsed between events. I find no evidence to establish a continuum of discrimination. I find that I am statute barred from investigating the incidents in 2001 and the issue of the temporary supervisory post that started in 2004. Therefore I must limit my consideration to the issue of the failure of the complainant to be promoted which was communicated to him in 2012.
4.2 Section 85A (1) of the Employment Equality Acts, 1998 – 2007 states: “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.” This means that the complainant must establish primary facts upon which the claim of discrimination is grounded and then the burden of proof passes to the respondent. Furthermore, in accordance with Labour Court Determination Arturs Valpeters v Melbury Developments Ltd EDA0917 [2010] 21 E.L.R there has to be ”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."
4.6 In relation to the issue of promotion, the complainant has offered no evidence that the promotion process was flawed other than the lack of communication from the respondent following the process. Having heard the totality of the evidence I accept the respondent’s submission that there was a delay in notifying all candidates which was only corrected following a review of procedures. Regardless, I find no evidence that the fact of the delay itself was linked to the grounds cited by the complainant. At hearing the complainant was asked directly why he had been unsuccessful to which he responded that he did not know. The vast majority of the complainants submission relates to events that are out of time and in relation to the more recent aspects of the complaint, I find that all that all the complainant has offered is mere assertion unsupported by any evidence.
5. DECISION OF THE EQUALITY OFFICER.
I have concluded my investigation of this complaint and hereby make the following decision in accordance with Section 79(6) of the Employment Equality Acts that:
- The complainant has failed to establish a prima facie case of discrimination on grounds of religion race or age in relation any of his conditions of employment including access to promotion.
- The complainant has failed to establish a prima facie case of harassment on grounds of religion race or age
____________________
Peter Healy
Equality Officer
16 December 2014