EQUALITY OFFICER'S DECISION NO: DEC-E/2014/070
PARTIES
Mr. Tomasz Jankowski
Vs
(Represented by Mullaney’s Solicitors )
Tesco Ireland Limited
(Represented by IBEC )
FILE NO: EE/2012/139
Date of issue: 3RD of October, 2014
1. Dispute
1.1 This dispute involves a claim by Mr. Tomasz Jankowski that he was discriminated against by Tesco Ireland Limited ongrounds of race in terms of section 6 of the Employment Equality Acts, 1998 to 2008 and contrary to section 8 of those Acts, in relation to his conditions of employment and other.
2. Background
2.1 The complainant referred a complaint under the Employment Equality Acts 1998 to 2008 to the Equality Tribunal on the 1st of March, 2012 alleging that the respondent had discriminated against him on grounds of race when he was subjected to less favourable treatment in respect of his working conditions and other specifically in relation to the booking of holidays. The complainant further submits that he was issued with a final written warning in relation to an incident where he did not show up for work but that others were not subjected to such disciplinary action for the same offence.
2.2 In accordance with his powers under section 75 of the Employment Equality Acts, 1998-2008 the Director delegated the case, on 9th of May, 2014 to me, Orla Jones, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of those Acts. This is the date I commenced my investigation. Written submissions were received from both parties. As required by Section 79(1) of the Acts and as part of my investigation I proceeded to a Hearing on the 23rd of May, 2014.
3. Summary of complainant’s case
3.1 The complainant states that he is a Polish National and submits that he was employed by the respondent as a general sales assistant (night crew) since 9th of March, 2006. His duties require him to stock shelves all night.
3.2 It is submitted that the complainant on 26th of January 2010 was reprimanded by Mr. L for allegedly returning late from his lunch despite the fact that he returned the same time as his colleagues.
3.3 On 28th of January 2010 the complainant was shouted at by Mr. L for not finishing his Section on time despite the fact that his hours had been cut from 39 to 35 per week.
3.4 In May 2010 Mr. L approached told the complainant that he would not be allowed any cigarette breaks if he did not start doing 3 sections a night.
3.5 On 20th of September 2011 the complainant requested 2 days off to go to London and was refused. The complainant took the time off anyway and subsequently received a final written warning and was suspended for 10 days.
3.6 On 7th October, 2011 the complainant requested holidays on the last 3 days of 2011 and the first week of January, 2012. His request was refused. It is submitted that it was customary for staff to choose which of the two Bank Holidays to work (Christmas or New Years Eve).
3.7 On 10th of March 2012 the complainant asked if he could book a week off for Christmas 2012. Mr. S refused stating that no one can reserve days off in December. The complainant then discovered that another staff member Mr. A had written in days off for 26th and 27th of December.
3.8 On 10th of April, 2012 the complainant spoke to Mr. D about a mistake in his roster as he was given an extra day off on Thursday which related to a bank holiday and which he wished to save. The roster was changed and complainant was told to come in on Thursday. The complainant after showing up for work on Thursday was then sent home and told he should not be working.
3.9 On 26th of April, 2012 the complainant was reprimanded for wearing runners with his uniform instead of the black shoes which they had been told to wear with the uniform.
3.10 In June 2012 the complainant in a general review wrote to his manager that he felt he was being discriminated against as he was being given more work to do than other staff members, he always has problems getting time off and he is regularly brought to the office for no good reason.
3.11 On 3 July, 2012 the complainant called in to say that he could not come to work that night as his car had broken down and he was stuck in Dublin and would not make it back to Sligo in time for work. Mr. A told him to take a taxi to the bus station and come back to Sligo despite the fact that it was now after 8 pm and he still wouldn’t make it to Sligo until after 12 midnight.
3.12 On 6 September, 2012 the complainant had booked 2 weeks holidays starting on 24th of December, 2012. The complainant asked if he could also take 2 days which were accrued to him before the holiday as Polish people celebrate Christmas on the 24th not the 25th. Mr S refused stating that that the store manager forbade anyone to take days off on 22nd or 24th of December. Another Irish person had booked time off at Christmas and had got these days off.
3.13 On 9th of October, 2012 at a meeting with the Personnel Manager Ms. B the complainant raised a number of issues to which he did not get any response.
3.14 On 15th of November, 2012 the complainant returned to work after a holiday for which he had not received his holiday pay. This holiday had been booked since March and related to time off for the birth of his child.
3.15 On 9th and 10th of December, 2012 the complainant felt sick at work and asked his manager Mr. S if he could go home. Mr. S refused to allow him to go home despite the fact that anyone else who feels ill is allowed to go home.
3.16 In January 2013 the complainant was going for a 2 week holiday to Poland. The complainant asked his manager to change his roster to allow for 2 days off before and after his holiday. Mr. S told him that he couldn’t do this as the rules had changed and no one is allowed to take days off before and after holidays anymore. The complainant found another staff member who was willing to swap with him to give him the Saturday off but management would not allow the swap. Irish employees continued to be permitted to take days off before and after holidays.
4. Summary of Respondent’s case
4.1 It is submitted that the complainant was employed by the respondent, as a General Assistant on night working with a routine “over 35 hour” per week contract. This contract is explicit regarding when annual leave is to be taken: one week in spring, two weeks in summer and the remainder on occasional days. Where the complainant has made claims regarding booking holidays before/after Christmas these are discretionary non-contractual leave dates.
4.2 It is submitted that the complainant’s allegations relating to incidents in 2010 fall outside the time limits provided for under Section 77 of the Acts and that there is no evidence of linkage from 2010 to 2011 as would be required to show if a continuing act over 2010 2011 and 2012.
4.3 It is submitted that the allegations contained in the complainant’s submission of 11 February 2013 constitute a new complaint and that time limits are an issue here and that this new complaint should only permit instances of discrimination which happened within 6 months prior to the 11th of February 2013 thus only those allegations dating from 10th of August 2012 can be looked at.
4.4 20th of September 2011 011 - The respondent submits that this matter has already been subject of a Labour Court Hearing and Recommendation and so cannot now be pursued as a claim of discrimination.
4.5 Holiday request October 2011- It is submitted that the Complainant did request 29th to 30th of December 2011 off as well as a week of in January. Mr. S gave the complainant the week off in January but could not facilitate the three days off in December as per store policy.
4.6 12th of April, 2012- The store manager did tell the Complainant to come into work that night but he was scheduled off. Mr. S tried calling the complainant to say a mistake had been made. The complainant was sent home but did receive an apology for the mistake and was paid for the night. Re ‘banking time’ in lieu of bank holidays this practice was stopped a long time ago for all employees as a national policy not just at store level.
4.7 June 2012- This relates to time in lieu following a bank holiday addressed above.
4.8 6 September 2012 –Holiday request relating to December 2012- The complainant booked and had been approved for holidays after Christmas 2012 he later wanted to add on 23rd and 24th of December 2012 but this was not possible as it was the busiest time of year. Mr. S refused this request as other staff had already booked the 26th and 27th of December, 2012 and it was not possible to give all staff the same time off. The respondent believes the other person who had booked this time off was Ms. Z who was not Irish. Mr. A had already booked the 26th of December off.
4.9 9th October, 2012 -This was a session on generic customer service training for the whole store and was not the appropriate time or place to respond to individual grievances.
4.10 November 2012 holiday pay issues- The complainant was uncertain as to required dates for holidays surrounding the imminent birth of his child. Arising from confusion over what was booked and what was ultimately taken the complainant was temporarily paid short. This was explained to the complainant and he received all of his holiday pay.
4.11 9-10 December, 2012 complainant was sick at work –It is submitted that the respondent has no record of this happening.
5. Conclusions of the Equality Officer
5.1 Preliminary Jurisdictional Issues- Time Limits
5.1.1 The respondent submits that a number of the allegations made by the complainant are outside of the time limits set down by the legislation. The respondent has argued that as the complaint was submitted on 1st of March, 2012 the applicable time period for this claim is therefore from 2nd of September, 2011 to 1st of March, 2012 and submits that many of the allegations made refer to dates prior to 2nd of September, 2011 and so are outside of the time limit.
5.1.2 It is submitted that the complainant’s allegations relating to incidents in 2010 fall outside the time limits provided for under Section 77 of the Acts and that there is no evidence of linkage from 2010 to 2011 as would be required to show if a continuing act over 2010 2011 and 2012. These allegations concern verbal interactions between the complainant and a manager and there are no other alleged interactions with this manager in a subsequent 18 month period. These allegations are outside the time limit and did not continue over a period and so there is no jurisdiction.
5.1.3 The complainant has submitted that the 2010 allegations amount to separate manifestations of the same disposition to discriminate and that the general nature of the complaint remains the same.
5.1.4 Section 77(5)(a) of the Acts provides as follows:
“Subject to subsection (6), 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 occurrence or, as the case may require, the most recent occurrence of the act of discrimination or victimisation to which the case relates.
(b) On application by a complainant the Director or Circuit Court, as the case may be, may, for reasonable case direct that in relation to the complainant paragraph (a) shall have effect as if for the reference to a period of 6 months there were substitutes a reference to such period not exceeding 12 months as is specified in the direction”.
Section 77(6A) of the Acts provides as follows:
“For the purposes of this section –
(a) discrimination or victimisation occurs –
(i) if the act constituting it extends over a period, at the end of the
period”
5.1.5 The effect of these provisions is that the complainant can only seek redress in respect of occurrences during the six-month period prior to the date on which the claim was received by the Tribunal unless the acts relied on constitute ongoing discriminatory treatment.
5.1.6 Section 77(5)(a) provides for the extension of a claim in circumstances where the complainant refers a complaint, which has been lodged within the required six months of the latest incident, and the complainant can show facts supporting an on-going situation of such occurrence. Section 77(6A)(i) goes on to provide for a case of continuing discrimination with the time limit referable to the point at which the discrimination ended. The effect of these provisions is that the complainant can seek redress in respect of occurrences outside of the prescribed period, where the acts relied on constitute ongoing discriminatory treatment. Thus I must now consider whether there was ongoing discrimination and whether all of the incidents were interlinked.
5.1.7 In considering the issue of whether the matters complained about constitute a chain of linked events or if all of the instances are separate events, I have taken into consideration the Labour Court reasoning in the case of County Louth VEC –v- Don Johnson EDA0712 which considered if separate acts of discrimination were linked. The Court stated:
“Having examined the matter the Court is satisfied that these alleged discriminatory acts did not occur within the time period specified in the Act for submitting a claim. In certain circumstances, the Court may take into consideration previous occasions in which a Complainant was allegedly discriminated against on the same ground, i.e. where the alleged acts can be considered as separate manifestations of the same disposition to discriminate and the most recent occurrence was within the time period specified in the Act.
5.1.8 I am also guided by the Labour Courts decision in County Cork VEC Vs Ann Hurley EDA1124 which considered the matter of ongoing discrimination where the Court found as follows
“occurrences outside the limit could only be considered if the last act relied upon was within the time limit and the other acts complained of were sufficiently connected to the final act so as to make them all part of a continuum”.
The Court also stated
It is clear ……… that in order for acts or omissions outside the time limit to be taken into account there must have been acts or omissions of victimisation (or discrimination) within the time limit. There can be practical difficulties in applying that provision. There must be some reality in the claim that acts of victimisation actually occurred within the limitation period. Otherwise a complainant could revive a claim which had been extinguished by the time limit simply by raising an additional related claim, no matter how tenuous, within the time limit.
The Court went on to state that
it appears that the admissibility of the claim in so far as it relates to alleged acts of victimisation in the period …… depends upon the validity of the claims of victimisation which allegedly occurred in the period after that date. Their admissibility is also dependent upon some link being established between the occurrences outside the time limit, and those inside the limitation period, which makes it just and reasonable for them to be treated as part of a continuing act upon which the Complainant can rely.
5.1.9 It is clear from the above, that in order to consider the earlier alleged incidents of discrimination, I must be satisfied that the complainant has established a link between the incidents and that they can be considered as separate manifestations of the same disposition to discriminate. In addition, I must decide whether the most recent alleged incident of discrimination is proven.
5.1.10 The complainant’s claims in relation to 2010 relate to incidents which took place between the complainant and a particular manager, Mr. L. The claims relate to incidents where the complainant was reprimanded and subjected to verbal abuse by Mr. L in relation to the amount of work which he was completing during his shift.
The next allegation submitted by the complainant refers to an incident which occurred in September 2011 and relates to a request for time off which the complainant was not granted. The majority of the allegations raised by the complainant relate to requests for time off and/or holidays where the complainant alleges he was treated less favourably due to his race. Mr. L is not mentioned in any of the later allegations and neither is any reference to the complainant being reprimanded for his work output. In fact Mr. S and Mr. A the managers who are mentioned in the complainant’s later allegations both advised the hearing that they never had any issue with the complainants work and both considered him to be a very good worker.
5.1.11 It has been submitted that the 2010 allegations which are outside of the six month time limit are linked to the claims which fall within the six month time limit and amount to separate manifestations of the same disposition to discriminate. I am not satisfied based on the totality of the evidence adduced in relation to this matter that the complainant has established a link between the earlier allegations which relate to incidents re verbal exchanges with Mr. L in 2010 and the later claims which relate for the most part to the complainants treatment by Mr. S and Mr. A in relation to requests for time off and holidays. I am thus satisfied that the allegations made which refer to dates prior to 2nd of September, 2011 are outside of the time limit.
5.2 Time Limits and submission of February 2013
5.2.1 The respondent submits that the initial complaint of 1st of March 2012 details allegations prior to that date but that a further submission dated February 2013 contains new and additional allegations outside of those outlined in the original complaint form. The respondent submits that the allegations outlined in the submission of February 2013 fall outside of the scope of the original complaint form and so cannot form part of the complaint and should not be considered as part of the claim.
5.2.2 The decision in County Louth VEC v The Equality Tribunal and Pearse Brannigan, Unreported, High Court, McGovern J. 24th July 2009, provides a clear authority to allow me to investigate additional acts once the nature of the claim is the same.
In Brannigan McGovern, J said:
I accept the submission on behalf of the respondent that the form EE1 was only intended to set out, in broad outline, the nature of the complaint. If it is permissible in court proceedings to amend pleadings where the justice of the case requires it, then a fortiori, it should be permissible to amend a claim as set out in a form such as the EE1, so long as the general nature of the complaint (in this case, discrimination on the grounds of sexual orientation) remains the same. What is in issue here is the furnishing of further and better particulars, although, it must be said, in the context of an expanded period of time. But under the legislation it is clear that the complaints, which are made within that expanded period, are not time-barred. That is not to say that complaints going back over a lengthy period would have to be considered as an issue of prejudice might arise. But this is something that would fall to be dealt with in the course of the hearing in any particular case.
Of course, it is necessary that insofar as the nature of the claim is expanded, the respondent in the claim must be given a reasonable opportunity to deal with these complaints and the procedures adopted by the Equality Officer must be fair and reasonable and in compliance with the principles of natural and constitutional justice
5.2.3 I am satisfied, that in the instant case, all of the incidents contained in the February 2013 submission relate to allegations of discrimination on the grounds of race. In addition, it is not envisaged that a complainant should have to submit an additional claim form for each and every alleged incident of discrimination. I am also satisfied that the respondent was on notice of all matters referred therein having received a copy of the submission on 12th February2013. I am thus satisfied that I have jurisdiction to investigate matters referred therein.
5.3 Jurisdictional Issue re Time off in September 2011/Written Warning and Suspension
5.3.1 It is submitted that on 20th of September 2011 the complainant asked for 2 days off to go to London. The complainant had returned from holidays on Tuesday 20th of September and requested the following Saturday and Sunday off. The complainants request was refused due to the short notice. The complainant took the days off anyway and did not show up for work. The complainant advised the hearing that following this he was subjected to disciplinary action. The complainant received a final written warning and a 10 day suspension.
5.3.2 The respondent submits that this matter has already been subject of a Labour Court Hearing and Recommendation and so cannot now be pursued as a claim of discrimination. The Labour Court recommendation which found that the company acted appropriately in the circumstances was submitted to the hearing. I am satisfied that the matter of the complainant’s appeal of the disciplinary sanction in relation to this matter has been the subject of a Labour Court Recommendation
5.3.3 The respondent does not say how or why this matter cannot be pursued as a claim of discrimination. It is clear that a decision was issued by the Labour Court in relation to the severity of the disciplinary action applied but not in relation to the disciplinary measure as it pertains to others and whether it was applied in a discriminatory fashion. The complaint which is being submitted to the Tribunal relates to a claim that the complainant was subjected to the aforementioned disciplinary action but that other Irish staff were not similarly disciplined in the same circumstances and that his treatment thus amounts to discrimination on grounds of race. Thus it is submitted that that complainant’s treatment in relation to this matter was less favourable to that of an Irish employee in the same circumstances. I am therefore satisfied that I do have jurisdiction to examine this claim insofar as it pertains to an allegation of discriminatory treatment.
5.4 Discrimination
5.4.1 The issue for decision by me now is, whether or not, the respondent discriminated against the complainant, on grounds of race, in terms of Section 6 and contrary to Section 8 of the Employment Equality Acts, 1998 to 2008, in relation to his conditions of employment and other during his employment with the respondent. 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 at the Hearing.
5.4.2 Section 85A of the Employment Equality 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. If she succeeds in doing so, then, and only then, is it for the respondent to prove the contrary. 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".
5.4.3 Section 6(1) of the Employment Equality Acts, 1998 to 2008 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… “
5.5 Discriminatory treatment in relation to Time off in September 2011/ Written Warning and Suspension
5.5.1 The complainant advised the hearing that he had returned from holidays following his 30th birthday celebrations for which he had received two tickets to a football match in London. The match was scheduled to take place on the weekend after the complainant returned to work. The complainant advised the hearing that he had not booked this time off but requested it upon his return to work. The complainant stated that he returned to work on Tuesday the 20th of September and asked for the following Saturday and Sunday off to attend the match. The complainant asked the Store Manager for the time off but was refused. The complainant advised the hearing that he went to the match anyway and did not show up for work on the days in question. The complainant advised the hearing that following this he was subjected to disciplinary action. The complainant received a final written warning to remain on his file for 12 months and a 10 day suspension. The respondent advised the hearing that the complainant could not be facilitated in his request for the time off due to the short notice of his request. The respondent advised the hearing that is matter had been the subject of a Labour Court Hearing and Recommendation under the Industrial Relations Acts which found that the company acted appropriately in the circumstances.
5.5.2 The complainant at the hearing stated that another staff member, Mr. B had similarly gone AWOL from work for a couple of days without explanation and had not been similarly disciplined. The complainant went on to state that another staff member, Mr. G had been sick for 2-3 days before calling in sick and was not similarly disciplined. When this matter was put to the respondent the respondent could not say whether or not Mr. B had been disciplined in relation to such matters but stated that it was currently in the process of engaging in disciplinary action with Mr. G over his absences. The complainant has submitted that these 2 Irish staff members were treated differently in similar circumstances. However, it would appear from the evidence adduced that the actions of Mr. B and Mr. G are not identical to the complainant’s situation. It has been submitted that both Mr. B and Mr. G were absent without reason for a number of days however the complainant has not suggested that either Mr. B or Mr. G had prior to their absences requested and been refused the days off in question. The complainant had requested specific days off and had been refused and after such refusal proceeded to disregard that refusal and took the days off anyway. I am thus satisfied that the complainant’s situation differed from that of Mr. B and Mr. G and so the complainant has not established that he was treated differently to Irish staff members in the same circumstances. Accordingly I am satisfied based on the totality of the evidence adduced that the complainant has failed to establish a prima facie case of discrimination in relation to this matter.
5.6 Request in relation to holidays during Christmas 2011
5.6.1 The complainant advised the hearing that he had on 7th October, 2011 given his manager at the time Mr. S a request on paper for holidays which he wanted to take on the last 3 days of 2011 (28th to 30th December) and the first week of January, 2012. Mr. S refused to accept it stating that no one could book time off in December. The complainant asked if he could work during Christmas and take New Years Eve off as it was customary for staff to choose which of the two Bank Holidays to work. Mr. S told him that no one could book these days off and that he would have to ask the main manager if he wanted New Years Eve off. There is nothing in the complainant’s contract which says he cannot take time off in January. The respondent advised the hearing that the complainant was granted the week off in January but that they could not facilitate the three days off in December as per store policy. The complainant has submitted that there is nothing in his contract which indicates that he cannot take time off in January. The respondent advised the hearing that the complainant was later granted the week off in January 2012 as per his request. The respondent advised the hearing that the refusal of the days off in December is in line with store policy and stated that this is due to the fact that December is one of its busiest times and a reference to this is contained in the complainant’s contract of employment which states that “Annual Leave will not normally be granted during our exceptionally busy times i.e. the month of December and the Easter Holiday period”.
The complainant did not adduce any evidence to suggest that this refusal of his request for annual leave in December of 2011 amounted to less favourable treatment on the grounds of his race. Accordingly I am satisfied based on the totality of the evidence adduced that the complainant has failed to establish a prima facie case of discrimination in relation to this matter.
5.7 Christmas Holidays 2012
5.7.1 On 10th of March 2012 the complainant during a talk with the Personnel manager asked if he could book a week off for Christmas 2012. He had worked in Tescos for 7 years and had only been home for Christmas once in that time. The complainant was told that he must request this officially by completing an application for the leave. No employee had ever prior to this been asked to complete any such form except for the complainant. He filled in the form immediately and went to ask Mr. S to sign the form at 10.45pm. When he found Mr. S he was standing with Ms. A Personnel Manager. The complainant asked Mr. S to sign his request form but Mr. S refused stating that no one can reserve days off especially in December. The complainant then found the calendar in which staff reserve days off and it showed that Mr. A had written in days off for 26th and 27th of December. The complainant showed this to Mr. S and asked him why different rules were applied to him.
5.7.2 The respondent advised the hearing that it was very hard to permit staff to have days of in the lead up to Christmas and that it is stated in the complainant’s contract that holidays are not to be taken in December, but the respondent stated that where possible it does try to facilitate staff. The respondent advised the hearing that Mr. A’s birthday was on the 26th of December and that he had already booked the days off as evidenced by the complainant. The respondent stated that Mr. A was simply the first comer in relation to the request for those days off. It emerged at the hearing that the complainant was subsequently granted this time off and was granted 2 weeks holidays commencing on 24th of December 2012.
5.7.3 The complainant advised the hearing that he had sought time off for Christmas in order that he could go home to Poland for Christmas. Mr. S advised the complainant that he was to be granted the 2 weeks holidays he had requested starting on 24th of December, 2012. The complainant then asked if he could also take 2 days which were accrued to him before the holiday and add them on to the start of the holiday. Mr S replied that the store manager forbade anyone to take days off on 22nd or 24th of December due to its being such a busy time. The complainant advised the hearing that he tried to explain that Polish people celebrate Christmas on the 24th not the 25th as the Irish do. The complainant was due to finish work at 6am on the 24th but would not be able to get to Poland as all flights were between 6am and 9 am and the airport is closed on the 25th. The complainant stated that he was refused this request and was told these are the rules. The complainant in his submission had stated that another Irish person had booked time off at Christmas and had got these days off. The complainant at the hearing did not offer any evidence to substantiate his claim that another Irish person had been granted those particular days off. The respondent advised the hearing that the person who had been granted those days off was not Irish but was Ms. Z who is Polish.
5.7.4 The respondent at the hearing stated that the complainant had already been granted 2 weeks holidays as requested during an extremely busy time when holidays were generally not permitted. It is clear from the evidence adduced here that the complainant having been granted the 2 weeks holidays as requested sought to extend his holidays by 2 days but was refused. The complainant has adduced no evidence to substantiate the claim that this refusal related to his race or that he was treated differently to an Irish staff member in the same circumstances in relation to this matter and while it may be unfortunate that the complainant’s booked holidays did not coincide with flights which would enable him to arrive in Poland in time to celebrate Christmas I am not satisfied that he has established a prima facie case of discrimination on grounds of race in relation to this matter.
5.8 Mistake in roster
5.8.1 On 10th of April, 2012 the complainant spoke to Mr. D about a mistake in his roster. The complainant advised the hearing that he had been given days off on Sunday, Wednesday and Thursday. The complainant explained to Mr. D that there was a bank holiday in this week and so he should only have two days off as he needed to save the bank holiday to use with his June leave which he had already booked. After 2 hours Mr. D came back and told the complainant that he could come in to work on Thursday and changed his roster. The complainant attended for work on the Thursday 12th of April but was called into the office by Mr. S and was told to go home as he was rostered off that day. The complainant tried to explain the situation and that his roster had been changed but Mr. S told him to go home. Mr. S said that they had tried to contact the complainant to tell him not to come in it emerged that the number which Mr. S had claimed to have used to try to contact the complainant was not the complainant’s current number but an old number. Later the complainant asked about taking the bank holiday leave which he had reserved in lieu of the Thursday off but when he applied to take it Mr. S informed him that the rules had changed and you could no longer book ‘bank holiday’ leave.
5.8.1 On 13th of April the complainant asked the Personnel Manager why he had been sent home the previous day and whether he would be paid for it she replied that in the system the complainant had the day off and so he would not be paid for it. The complainant then asked about taking the bank holiday leave which he had reserved. She informed him that it was not possible due to a change introduced from Dublin which meant that you could no longer ‘bank’ leave to use in the future. The complainant then asked if they had received anything in writing notifying of this change. The Personnel Manager could not produce anything in writing in this regard. The complainant later discussed the situation with his union representative but when he returned to work Mr. S told him that he would in fact get paid for the previous night. Another Manager Mr. A also joined the conversation and told the complainant that a mistake had been made by the night shift managers and Mr. A apologised to the complainant for the mistake and reassured him that he would be paid for the night in question. Mr. A stated that Mr. D with whom the complainant had the discussion in relation to changing his roster for Thursday night had not communicated this matter to anyone else and so the complainant had continued to be rostered off on that night. Mr. A advised the hearing that a policy had been introduced at this time which meant that staff could no longer reserve time in lieu of bank holidays for use in the future. The respondent submitted that the computer system had also been updated to reflect this change. The respondent at the hearing conceded that this was a change in policy and that that the complainant may not have been aware of it but that it was applied to all staff from that time onwards. The complainant did not produce any evidence to substantiate the claim that this policy and his treatment in relation to this matter amounts to less favourable treatment on grounds of race. Accordingly I am satisfied based on the totality of the evidence adduced here that the complainant was not discriminated against by the respondent in relation to these matters.
5.9 Reprimanded for wearing runners
5.9.1 On 26th of April, 2012 the complainant was reprimanded for wearing runners with his uniform instead of the black shoes which they had been told to wear Mr. S told the complainant to put on the black shoes The complainant asked if he could wear his runners instead as the shoes caused him to have pain in his feet and would have to sit down. Mr. S eventually told the complainant that he could go and change them and wear his runners. On 4th of May 2012 the complainant was called to the office for a talk with Mr. S and Mr. A. He was accompanied by his union representative. The complainant was again wearing runners and was told at this meeting that he had to wear the correct black shoes as per the uniform. The complainant stated that others did not wear the full uniform and others wore runners and he stated that he felt he was being discriminated against.
5.9.2 The respondent advised the hearing that the wearing of black shoes is a part of the uniform for all staff in the complainant’s role that the requirement to wear same is contained in the complainant’s contract. The respondent stated that the application of policy regarding the wearing of shoes was introduced across the Board for all night staff on 22nd of April, 2012. A staff meeting was held on this date and all staff were briefed re the requirement to adhere to this policy. This is referred to in the complainant’s submission. The complainant advised the hearing that he had also raised an issue as to why staff had to provide their own black shoes for the uniform and stated that he was of the opinion that Tesco’s should supply the black shoes if they were a part of the uniform. The complainant advised the hearing that people often wore the wrong shoes or uniform but were not reprimanded for it. The complainant could not provide any specifics in relation to this aspect of his claim and whether such instances had occurred before the meeting of 22nd of April, 2012 thus has not substantiated the claim that this amounts to less favourable treatment on the grounds of race. Accordingly I am satisfied based on the totality of the evidence adduced here that the complainant has not established a prima facie case of discrimination on grounds of race in relation to this matter.
5.10 Complaints of discrimination
5.10.1 The complainant advised the hearing that he, along with two other Polish staff members, had made complaints of discrimination in October 2011, they had raised these in a meeting with Mr. A. Following the meeting no action was taken by the respondent on foot of the complaints of discrimination. The respondent at the hearing did not dispute the fact that no action had been taken on foot of the complaints of discrimination and provided no reason for the failure to take action.
5.10.2 In June 2012 the complainant in a Performance review wrote to his manager that he felt he was being discriminated against as he was being given more work to do than other staff members, he always has problems getting time off and he is regularly brought to the office for no good reason. No action was taken by the respondent on foot of this. The respondent advised the hearing that this document formed part of the complainants performance review. The respondent stated that Mr. S had filled in the manager’s comments indicating that the complainant does his work to a highstandard and always helps around the shop when finished his work. In the ‘My comments’ Section the complainant wrote that he feels he is being discriminated against by the managers as he has more tasks to do than others and always has problems when it comes to booking time off. The respondent advised the hearing that no action had been taken on foot of these comments. The respondent at the hearing could not say why no action had been taken on foot of the complainant’s comments. Mr. S advised the hearing that he had given the complainant a very positive review which could be seen from his comments on the complainant being a hard worker. Mr. S advised the hearing that his comments were entered on 29th of June, 2012 in the section which precedes the section for complainant’s comments. The complainant’s comments appear to have been entered on the same date as Mr. S’s comments. Mr. S initially could not recall seeing the complainant’s comments on the review form at the time when he filled in his comments and some discussion took place as to whose comments were filled in first, however as matters progressed Mr. S did not deny the assertion that this form complete with the complainant’s comments in relation to discrimination was seen by him in the course of the completion of the complainant’s performance review. It emerged at the hearing that no action was taken on foot of the complainant’s comments that he felt discriminated against by the managers. I am satisfied from the totality of the evidence adduced here that the complainant has raised a prima facia case of discrimination on the grounds of race in relation to these matters which the respondent has failed to rebut.
5.11 Incident re complainant’s car break down
5.11.1 On 3 July, 2012 the complainant called in to say that he could not come to work that night as his car had broken down and he was stuck in Dublin and would not make it back to Sligo in time for work. The rule is that you must contact work at least 2 hours before you are due to start, which he did. The manager answered the call and accepted his absence. However 2 hours later Mr. A called him and asked him what had happened and why he was not at work. He explained the story to Mr. A who then told him that he had to show up for work. Mr. A told him to take a taxi to the bus station and come back to Sligo. The complainant told him that it was now after 8 pm and he didn’t know the time of the next bus and that even if one was leaving shortly he still wouldn’t make it to Sligo until after 12 midnight. The complainant did not show up for work on the night in question. The complainant did not make any assertion that he was subjected to any disciplinary action for his failure to attend work on this night. The respondent at the hearing stated that they had asked the complainant to come into work on the night in question as it was a very busy night and they couldn’t afford to have staff missing. Mr. A sated that he tried to facilitate the complainant given the circumstances and thus offered him a late start time of 12 midnight instead of 8 pm as his shift ran until 6 am anyway. I am not satisfied based on the totality of the evidence adduced here that Mr. A’s treatment of the complainant amounts to discrimination on grounds of race. Accordingly I am satisfied based on the totality of the evidence adduced here that the complainant has not established a prima facie case of discrimination on grounds of race in relation to this matter.
5.12 Holiday Pay
5.12.1 On 15th of November, 2012 the complainant discovered he had not been paid holiday pay in relation to a week’s holiday taken after the birth of his child. In March 2012 the complainant had informed Mr. S that his fiancée was pregnant and that she was due around the end of October and so he wanted to book some time off for that period. Mr S agreed that the complainant could have the time off but asked him for precise dates. The complainant advised him that the baby was due on 23rd of October, 2012 so it would be some time around that date. In the last week in October the complainant told Mr. S that his fiancée was to be induced on 2nd of November and that he would be taking one week’s holiday and 3 days paternity leave after this date. The complainant was advised that his holiday pay would not be paid until a week later. The respondent advised the hearing that there had been some confusion over what was booked and what was ultimately taken given the fact that the complaiant was understandably unable to give exact dates for the time off. The respondent stated that as a result the complainant was temporarily paid short. This was explained to the complainant and he received all of his holiday pay. The complainants did not dispute that the holiday pay was paid albeit not on time. Accordingly I am satisfied based on the totality of the evidence adduced here that the complainant has not established a prima facie case of discrimination on grounds of race in relation to this matter.
5.13 Sick at work
5.13.1 On 9th and 10th of December, 2012 the complainant felt sick at work and asked his manager Mr. S if he could go home as he had stomach problems and was going to the bathroom every 15 minutes. Mr. S refused to allow him to go home. The complainant asked why anyone else who feels ill is allowed to go home but not the complainant. Mr. S replied that the rules had changed and from now on no one is allowed to go home when they feel sick. The complainant advised the hearing that Mr. S told him to go and sit in the canteen until he felt better and then to return to his work. The complainant advised the hearing that he was going to the bathroom every ten minutes due to his stomach upset but that he was still not allowed to go home. The complainant stated that anyone else who was sick was allowed to go home when they requested this. The complainant stated that he had asked Mr. S at the time why he was not allowed to go home when anyone else who was sick was allowed to go home. Mr. S replied that there had been a change in the rules which had come from Mr. O and which meant that anyone who was sick at work could not go home but had to sit in the canteen until they felt better. The complainant advised the hearing that the night before the complainant was sick Mr. L an Irish staff member had been sick at work and had been allowed to go home straight away. The respondent at the hearing did not dispute this. I am satisfied from the totality of the evidence adduced her that the complainanthas established a prima facie case of discrimination on grounds of race which the respondent had failed to rebut.
5.14 Holidays in January 2013
5.14.1 In January 2013 the complainant was going for a2 week holiday to Poland during which he planned to have his daughter christened. The roster runs from Sunday to Saturday so a week off must start on a Sunday and run to Saturday. The complainant had booked his holidays but planned to have his daughter christened on Sunday the 15th of January and so would have to fly to Poland on the Saturday. When he received his roster for the previous week his days off were Monday and Friday. The complainant asked his manager to change his roster to allow for 2 days off before his holidays as he had a flight booked for Saturday and on the next day his daughter was going to be christened. Mr. S told him that he couldn’t do this as the rules had changed and no one was allowed to take days off before and after holidays anymore. The complainant spoke to Mr. A about this who told him that the roster could not be changed but suggested that maybe he could change the date of the christening. The complainant stated that he had advised the respondent that he would lose a lot of money if he had to cancel the christening as arrangements had been made and deposits had been paid. The complainant later discovered that Irish employees continued to be permitted to take days off before and after holidays. The complainant advised the hearing that an Irish employee Mr. D had been permitted to go on holidays mid week from a Thursday. He also stated that another Irish staff member Mr C was permitted to take days off before and after his holidays after the alleged change in rules. These claims were evidenced by extracts from the relevant rosters.
5.14.2 The complainant advised the hearing that he then found another staff member who was willing to swap with him to give him the Saturday off but stated that management would not allow the swap. Witness for the complainant, Ms. K advised the hearing that she was the employee who had volunteered to swap with the complainant as she was rostered to be off on the Saturday in question. Ms. K advised the hearing that she had offered to work the Saturday in question instead of the complainant. Ms. K advised the hearing that she was surprised that her offer to swap with the complainant was not allowed as she stated that she had been permitted to swap days with an Irish employee Mr. F when Mr. F had required a swap to facilitate his holidays but that she was not permitted to do the same when she requested a swap to facilitate the complainant. It is clear from the evidence adduced that the complainant had arranged his child’s christening on a day which would necessitate him getting a flight on the day before his booked holidays, a day on which he was scheduled to work, I am bearing in mind the fact that it was not open to the complainant to book his holidays from a Saturday to a Sunday as the respondent policy states that holidays must run from a Sunday to a Saturday. It is also clear from the evidence adduced that the respondent did permit the taking of days off before and after holidays where employees needed to add on days which did not fall in between the Sunday to Saturday period. In addition, it is clear that the respondent permitted the swapping of days off between staff members where holiday plans or otherwise necessitated the taking of days outside of the Sunday to Saturday policy. Finally, it is clear from the evidence adduced that the respondent did not allow the complainant to avail of these days off at the start of his holiday and also did not allow the complainant to swap his day off with a willing colleague even though the request related to time off for his child’s christening. The respondent at the hearing provided no arguments as to why the complainant had been treated differently to other staff in relation to these matters, I am thus satisfied from the totality of the evidence adduced that the complainant hasestablished a prima facie case of discrimination on grounds of race which the respondent has failed to rebut.
5.15 Other allegations
5.15.1 The complainant has submitted other allegations relating to matters such as being allocated more work to do than others, being refused time off, and being reprimanded by managers as well as delays in receiving holiday pay. I have examined the evidence of both parties, both written and oral, in relation to these matters, and from the totality of the evidence adduced, I am satisfied the complainant was not subjected to discrimination on grounds of race in relation to these matters. I do not intend to detail each and every one of these allegations in my findings. I am guided in this matter by the recent Judgment of Ms. Justice Iseult O'Malley in Angela T Carr and The Financial Services Ombudsman Vs EBS Building Society[1] which states
88. I consider that the obligation of the respondent to give the "broad gist" of his reasons in a written finding means that he is not obliged to deal on a point-by-point basis with every argument made by a complainant. This was a case with extensive written submissions. The respondent is, within his discretion and relying on his own expertise in the area, entitled to select and determine those issues that appear to him to be relevant.
6. DECISION OF THE EQUALITY OFFICER.
6.1 I have completed my investigation of this complaint and make the following Decision in accordance with section 79(6) of the Employment Equality Acts, 1998-2008. I find that -
(i) the complainant was not discriminated against by the respondent on grounds of race pursuant to section 6(2) and contrary to section 8 of the Acts in relation to
- the refusal of time off in September 2011 and resultant written warning and suspension
- his request in relation to holidays during Christmas 2011
- his request in relation to holidays during Christmas 2012
- the mistake in the roster in April 2012
- being reprimanded for wearing the wrong shoes
- being afforded a late start when his car broke down
- the late payment of his holiday pay in November 2012
(ii) the complainant was discriminated against by the respondent on grounds of race pursuant to section 6(2) and contrary to section 8 of the Acts in relation to
- his complaints of discrimination to the respondent
- his treatment while sick at work in December 2012
- his treatment in relation to his holiday request for January 2013
6.2 Section 82(1) of the Employment Equality Acts, 1998-2011 sets out the redress which an Equality Officer can order when a complaint of discrimination is upheld.
6.3 In considering the redress in this case, I am mindful of the fact that I have found that the complainant has been subjected to discrimination on grounds of his race in relation to a number of matters. I am also mindful of the fact that the complainant had raised complaints of discrimination with the respondent on two occasions and that no action was taken on foot of such complaints. In addition, I have to be aware that any award for compensation should be proportionate, effective and dissuasive. In making my award, I am mindful of the remuneration which the complainant was in receipt of at the relevant time, and the length of time he was employed by the respondent. I consider an award of compensation in the sum of €12,000 to be just and equitable.
6.4 In accordance with my powers under section 82 of the Employment Equality Acts, 1998-2011 I hereby order that the respondent pay the complainant that sum by way of compensation for the distress suffered by her as a result of the discrimination. This component of the award is not in the form of remuneration and is therefore not subject to the PAYE/PRSI Code.
____________________
Orla Jones
Equality Officer
3rd of October, 2014
'Footnotes'
1] Neutral Citation [2013] IEHC 182 No. 2012/132MCA