DEC-E2014-004

The Equality Tribunal

EMPLOYMENT EQUALITY ACTS

DECISION NO. DEC-E2013-004

PARTIES

Mohammed Faysal

(Represented by SIPTU)

AND

Brinks Ireland Limited

(Represented by Peninsular Business Services (Ireland) Limited)

File reference: EE/2011/395

Date of issue: 10 February 2014

HEADNOTES: Employment Equality Acts - Sections 6, 8 and 16 – Race & Religion – Harassment – Discriminatory Dismissal – Victimisation & Victimisatory Dismissal.

1. DISPUTE

1.1 This dispute concerns a claim by Mr Mohammed Faysal that he was discriminated against by Brinks Ireland Limited on the grounds of race and religion contrary to section 6 (2) of the Employment Equality Acts in relation to discriminatory dismissal, that he was harassed in accordance with section 14A of the Acts and that he was victimised and dismissed in a victimisatory manner contrary to section 74 (2) of the Acts.

1.2 The complainant referred his claim to the Director of the Equality Tribunal on 19 April 2011 under the Employment Equality Acts. On 19 June 2013, in accordance with his powers under section 75 of the Acts, the Director delegated the case to me, Hugh Lonsdale, 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 sides and in accordance with Section 79(1) of the Acts and as part of my investigation I proceeded to a hearing on 15 October 2013 and final information was received on 20 November 2013.

2. COMPLAINANTS' SUBMISSION

2.1 The complainant started working for the respondent on 16 April 2010. He submits that at his interview he was asked his religion, why he had a beard and were he was from.

2.2 The complainant submits that he was subjected to a series of discriminatory acts after he came back from holiday in September 2010. He was working in a shopping centre in Saggart when a false case was made against him by a member of the public. The respondent looked into the incident and told him there was no problem. However, he was moved from Saggart and told he would have to work in Lucan. He refused to move because he was attending college. The respondent then started to give him shifts on week days even though they knew he was a full-time student. Around the same time he was called into the office and told to cut off his beard. The complainant said he had the beard because of his religion and submits this started to create problems for him.

2.3 On 27 October 2010 the complainant was called into a meeting in the office with Mr A and Mr B and he submits he was told to resign. He was given a letter to sign and told to sign it or they would fire him. The complainant submits he refused to sign and they started to create pressure for him. The complainant spoke to his local SIPTU shop steward who gave him a number for the SIPTU representative. The representative then spoke to the company. Mr A then called the complainant into the office and told him he was on a last chance. However, his shifts were changed and he was made to work in a variety of locations, including: Bray, Wicklow, Drogheda and Navan; very far from Dublin city centre where he lived, even though they knew he had no transport of his own.

2.4 One day at work he was punched in the head. He had to go to his GP and then to the Mater Hospital. He told the respondent and instead of doing anything for him they gave him a job in Navan. He refused to go and was told he would be fired even though he was sick.

2.5 In January 2011 he went on holiday for ten days. Before he was due back he sent an email to Mr B asking for extra hours. He was asked to produce a letter from his college confirming his holidays. He said he was not on holiday but had a few days off from college before resuming his studies. He was called into the office and someone from HR told him he would be kept on layoff because there were no hours available for him. He contacted SIPTU again and the representative told him to go into the office for a meeting. At the meeting on 12 January 2011 he went to the office and was told he would be kept on layoff for a few weeks and when the opportunity comes they would call him. His P45 was then issued.

3. RESPONDENT’S SUBMISSION

3.1 The respondent submits that the complainant submitted his claim on 19 April 2011 and I therefore can only consider events from 19 October 2010.

3.2 The respondent confirmed the complainant started working for them as a Security Officer on 16 April 2010 and his employment terminated on 7 January 2011. He was interviewed by Mr A, who denies asking the complainant about his religion, where he was from or about his beard. Indeed, they submit that the complainant did not have a beard at this time. They had no need to ask the complainant where he was from as this was stated on his working visa. If any of these were matters had been a concern to the respondent or if it was their policy to discriminate then they would not have hired the complainant in the first place.

3.3 The complainant grew a beard some time into his employment. He was never asked to shave it off and he never did.

3.4 The respondent submits that in September 2010 the complainant made a false arrest whilst working in Saggart. They asked him what happened for insurance purposes but took no disciplinary action.

3.5 The respondent submits that the complainant was not asked to resign on 27 October 2011, or at any other time. Both Mr A and Mr B deny putting any pressure on the complainant to resign. They also deny all the alleged threats made by the complainant. The matters discussed with the complainant and the SIPTU representative were his terms and conditions of employment. It was explained that his contract did not automatically entitle him to work 20 hours per week. The issue of arranging hours around his college commitments was also discussed. They also discussed that they had to remove him from a site as he had brought three friends into the building who were not authorised to be on the premises. The client had insisted that he was removed and this left the respondent with no choice but to remove him. However, instead of disciplining him he was given work on other sites.

3.6 The complainant was contracted to work 0 – 20 hours depending on the operational needs of the respondent. At the start of his employment he regularly worked weekdays. The respondent understood he was not in college at this time. In September 2010 the complainant informed the respondent he started college and asked that his hours be adjusted to fit around his classes and this was facilitated. In the fifteen weeks from 24 September 2010 until 9 January 2011 he worked an average of 19.36 hours per week. Throughout the entire 38 weeks of his employment he worked an average of 23.05 hours per week.

3.7 The respondent submits that they went out of their way to facilitate the complainant but when they contacted him about shifts he refused them because of college commitments. He was never laid off, made redundant or put on short time.

3.8 From the start the complainant worked at various locations and he knew he was not guaranteed to work in any specific location. He was not allowed to return to one site, as detailed above. From September 2010 he was restricted in the hours and days that he would work and this resulted in a greater diversity in the locations he could work in. From 24 September 2010 he only worked on Fridays, Saturdays and Sundays, apart from one Thursday, one Monday and the Christmas period when he worked weekdays. He was not rostered for weekdays, as he was not available.

3.9 The respondent submits that they have no record of the complainant being attacked at work.

3.10 In January 2011 the complainant told the respondent the shifts were not convenient for him due to his college commitments and informed them that he would not be back. The respondent considered he had resigned his position and his P45 was issued on 15 January 2011.

3.11 The respondent submits that they are an equal opportunities employer and have an anti-bullying and harassment policy in place, as well as a grievance procedure which the complainant did not utilise.

4. FINDINGS & CONCLUSIONS OF THE EQUALITY OFFICER

4.1 The respondent contends that as this complaint was referred to the Equality Tribunal on 19 April 2011 I can only investigate incidents which took place within six months of that date (19 October 2011). Section 77 (5) (a) states: “a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of the occurrence or, as the case may require, the most recent occurrence of the act of discrimination or victimisation to which the case relates.” It is possible to refer to a number of events in the same claim of which only the most recent is within the six month time frame where it can be shown that the events create a chain of related events. Also this period may be extended to twelve months if there is reasonable cause for a delay in submitting a claim.

4.2 The complainant did not make an application to extend the time to twelve months. The first incident referred to by the complainant was his interview in April 2010 and then to claims in relation to other incidents from September 2010 onwards. It is my finding that the events are linked and can be taken to be a chain of events and I am therefore investigating all the incidents referred by the complainant.

4.3 I have to decide if the complainant was harassed on the grounds of race and religion, if was dismissed in a discriminatory manner, if he was victimised and if he was dismissed in a victimisatory manner. In reaching my decision I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence presented at the hearing.

4.4 At the hearing the complainant confirmed that he is from Bangladesh and is a Muslim. He contends that at the interview and in a subsequent meeting with the interviewer, who was his manager, he was told that he must shave off his beard. He says he told the respondent that he could not shave off his beard because of his religion. He did not shave off his beard and nothing further happened. The respondent contends that the complainant did not have a beard at his interview, that he grew one during his employment and when he did they raised no issue with him. The respondent submitted a copy of the complainant’s Private Security Authority (PSA) licence card issued in August 2009 which shows the complainant did not have a beard.

4.5 The respondent contends they have no policy regarding beards. If they did they would not have recruited the complainant if, as he claims, he had a beard at the interview. Equally if he was subsequently asked to shave it off and refused then I find it difficult to believe that nothing further would have been said by the respondent. The complainant’s contract states under Dress Code ‘Employees are expected to present themselves in a neat, clean and tidy manner, wearing company uniforms and other protective clothing where supplied and where appropriate. Guidance on this can be obtained from your immediate supervisor/Shift Manager.’ I conclude that the respondent had no policy against beards unless they resulted in someone not being able to ‘present themselves in a neat, clean and tidy manner’ and this was not the case with the complainant. I therefore conclude that the complainant was never asked to shave off his beard. Also, on the balance of the evidence given at the hearing, I do not accept that the complainant was asked directly about his religion or country of origin at his interview.

4.6 The respondent contends that in September 2010 the complainant brought three friends around a location he had been working in regularly since he started in April 2010. The client considered this inappropriate and did not want the complainant to work there. The complainant contends the friends dropped in to say hello and were signed in as visitors and stayed for less than ten minutes. He considers the action to remove him was taken because his friends looked different and had beards.

4.7 His main working location then changed to a shopping centre where the complainant was involved in an incident with a customer in October 2010. No disciplinary action arose but the respondent contends they had to comply with the wishes of the shopping centre management that the complainant would not work there again.

4.8 There was a meeting on 27 October 2010 at which the complainant contends he was told to resign or the respondent would make problems for him. The respondent contends the complainant was accompanied by a union representative and they deny that any pressure was put on the complainant to resign. They contend the meeting discussed his terms and conditions of employment, that his contract did not entitle him to work 20 hours automatically. The client’s insistence on removing him after his friends visited was also discussed and that he was not going to be disciplined but he would have to work on other sites. Also, the issue of hours being arranged around the complainant’s college was discussed.

4.9 After that the complainant worked in a variety of locations, mainly on Fridays, Saturdays and Sundays with a few extra shifts over the Christmas period. The complainant contends he took leave approved by the respondent from 2 to 12 January 2011 and was told he was laid off when he tried to return to work. The respondent contend the complainant told them that the shifts he was being offered did not suit him because of his college course and he would not be back. They considered that he had resigned and issued his P45.

4.10 There were incidents involving the complainant in two locations as a result of which the respondent contends they were no longer able to place the complainant in either. The complainant contends that the first incident was caused by a false accusation and the respondent did not interview people to obtain the facts. The respondent contends that the complainant did not have the authority to take the action he did. They were told by their client that the individual involved was a regular customer and they had to ask that the complainant no longer worked in the shopping centre. The complainant accepts that three friends visited him in the second location, they signed in as visitors, only stayed a few minutes and the issue only became an issue because of the different appearance and beards of his friends. The respondent says the location was a centre for people with intellectual difficulties. Their client considered the complainant’s friends looking around was entirely inappropriate and indicated the respondent’s contract would be in jeopardy if the complainant returned to the location.

4.11 The complainant considers that he was harassed when, following these incidents, he was sent to different locations that were very difficult for the complainant to get to and was not picked up when the respondent had said they would. Also, that around the same time the complainant returned to full time education and the respondent deliberately rostered him for shifts when he could not work.

4.12 There is contradictory evidence as to why the complainant’s employment with the respondent came to an end. He contends he was on authorised leave from 2 to 12 January 2011 and was told he was laid off when he tried to return to work. In written submission he said he was told this in a meeting with the respondent, when his local SIPTU representative was also present on 12 January 2011. At the hearing the complainant submitted an email dated 6 January 2011 that he sent to the local SIPTU representative asking him to tell Mr B that he needed the next week off for his exams and a copy of Mr C’s email to Mr B asking if he could facilitate the complainant and to advise him accordingly. No reply was submitted. On 10 January 2011 the complainant sent an email to Mr B stating he was back to work next Friday (14 January) and asking for a full week’s work as he was off college. By email dated 12 January 2011 Mr C asked the complainant for a letter from his college confirming that he saying he was on holidays and that he would not be rostered until the letter was produced. The following day the complainant told Mr C that he was not on holiday but just off for a week and asked to be put back on the roster. Mr C replied on the same day (13 January) that the complainant needed to come in and see him before he could be put back on the roster. Then the complainant emailed his position to the SIPTU representative and said he had been told he was on lay off and was going to be given his P45. This email was forwarded to Mr C who replied that he would arrange to meet the complainant. That is the end of the correspondence and the only documentation until the complainant received his P45 on 24 January 2011.

4.13 When the complainant asked to return to work on a full time basis after a period of leave he was asked to obtain a letter from his college about holidays and he did not do this. He was then asked to come into the office to discuss the situation and again he did not do this. I note that not all those involved at the time who worked for the respondent were available as witnesses, as they no longer work for them.

4.14 Victimisation is set out in section 74 (2) of the Employment Equality Acts:

“For the purposes of this Part victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to ….. a complaint of discrimination made by the employee to the employer or …. any proceedings by a complainant,”

In this case there has been evidence that the complainant did tell the respondent that he was unhappy with the shifts he was rostered to work and when he was not rostered, however there is no evidence that he made any claim of discrimination to or about the respondent before he left their employment. The complainant is therefore unable to establish a prima facie claim of victimisation or victimisatory dismissal.

4.14 The complainant alleges he was harassed and harassment is defined by section 14A (7) of the Acts which states:

“references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds ….

being conduct which in either case has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person”.

The complainant’s contention is that he was harassed when he was moved from two locations where he had been working regularly and thence given shifts in a wide variety of locations that were difficult for him to get to. Also, that he was allocated shifts which he could work because of his college commitments. And finally when he was not allocated any shifts after a break in January 2011.

4.15 The respondent contends there were incidents in each of the two locations which required them to move the complainant away from them. They did, however, decide not to take any disciplinary action against the complainant. Then, because he could no longer work in these locations and he was only available at weekends they were restricted in the locations where he could be located. I note that he had on occasions worked in these locations before the two locations and that some of them would be easily travelled to from the centre of Dublin.

4.15 In this claim the discriminatory grounds are race and religion and I can find nothing in the evidence adduced to link any of the incidents to either of the grounds. Accordingly, I conclude that the complainant has failed to establish a prima facie case of discrimination in relation to harassment.

4.16 The respondent contends he was dismissed when he was not allowed to return to work after a break and his P45 was issued. The respondent contends the complainant resigned so his P45 was issued. I have examined all the evidence available to me and it is clear that the complainant did not return to work after his break; however it is not clear why. It would appear that the relationship between the complainant and the respondent had deteriorated and this led to the employment ending. However, I can find no link in the events that led to the complainant’s employment with the respondent ending to his race or religion and find that he is therefore unable to establish a prima facie claim of discriminatory dismissal.

5. DECISION

I have investigated the above complaints and make the following decisions in accordance with section 79 of the Acts that:

• the complainant was not dismissed in a discriminatory manner,
• the complainant was not harassed,
• the complainant was not victimised and
• the complainant was not dismissed in a victimisatory manner.

____________________

Hugh Lonsdale

Equality Officer

10 February 2014