The Equality Tribunal
EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E2015-074
PARTIES
Anna Smolinska
(Represented by Peter Leonard B.L., instructed by Padraig Murphy Solicitor)
AND
WEBROOT INTERNATIONAL LIMITED
(Represented by Des Ryan B.L. instructed by Matheson Solicitors)
File reference: EE/2013/073
Date of issue: 14 August 2015
HEADNOTES: Employment Equality Acts Sections 6 and 8 – Gender and Race.
1 DISPUTE
This dispute concerns a claim by Ms Anna Smolinska that she was discriminated against by Webroot International Limited on the grounds of Race and Gender contrary to section 6 (2) of the Employment Equality Acts in relation to discriminatory dismissal in terms of section 8 of the Acts.
The Complainant referred her claim to the Director of the Equality Tribunal on 11th February 2013 under the Employment Equality Acts. On the 25th May 2015, in accordance with his powers under section 75 of the Acts, the Director delegated the case to me, Michael McEntee, 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 Friday 5th June 2015. Supplementary information was received on the 10th June 2015.
2 COMPLAINANTS' SUBMISSION
The Complainant started work for the Respondent on 10 April 2012 and her employment ended on 7th February 2013.
The Complainant submitted that she was selected for dismissal on the grounds that she is of Polish nationality and is a woman.
Other named employees with the same or shorter service and of a different gender and nationality were continued in employment.
She completely disputes the assertion by the Respondent that her employment was terminated because of low sales quota achievement.
3 RESPONDENT'S SUBMISSION
3.1 The Complainant was employed by Webroot as an Inside Sales Representative on the dates referred to.
The Respondent submits that the Complainant’s responsibilities included generating sales leads, negotiating and closing sales opportunities and processing these opportunities within the customer relationship management software system. From the outset of her employment there were on going issues with Complainant’s sales performance. The Complainant failed to reach her agreed sales targets for the three consecutive quarters of her employment. She failed to properly record her sales activities or build a future pipeline for the Company.
3.2 The Respondent took a decision to terminate the Complainant’s employment for performance reasons and her termination was wholly unconnected to her race or gender.
The Complainant was subject to and fully aware of the Respondent’s Sales Plan & Policy. Her signed acknowledgement was included in the Respondent’s submission.
During the period of the Complainant’s employment a number of her colleagues failed to achieve their sales targets and two of these resigned their employment.
The Respondent affords all employees a reasonable period in which to improve performance and reach targets. However where a sales employee does not achieve targets over a substantial period of time and it becomes unlikely that the employee will do so in the long term the Respondent is required to evaluate the employee’s performance at that stage.
3.3 The Respondent is committed to equality and diversity in the workplace and is an Equal Opportunities employer. All Managers receive training on equality, including race and gender issues. A copy of the Respondent’s Equal Opportunities Policy was provided to the Tribunal. Out of a total of 28 employees in the Dublin office, 11 are non-Irish and 12 are women. The Complainant’s immediate Line Manger was Non Irish (Swedish) and a woman.
The Respondent recognised that in valuing diversity it catered to a customer base of growing diversity and also ensured that colleagues were treated with respect and dignity.
In relation to two other employees referred to in the Complainant’s submission it was submitted with supporting evidence in the written submission that neither are appropriate comparators in any event.
3.4 The Respondent asserted that the Complainant had not produced credible prima facie evidence of any kind to support a race or gender basis for the ending of her employment. All sales employees, are treated equally and assessed by reference to their targets irrespective of race or gender.
3.5 Supplementary Statistical Evidence was requested from the Respondent in relation to Sales figures. This was supplied and considered.
4 Summary of Oral hearing
4.1 Supplementary issues raised by the Complainant at the Oral hearing were
· the fact that the Complainant had successfully concluded her six month probationary period without negative incident but was terminated three months later effectively without warning.
· The Line Manger had indicated that “She had to choose someone and had chosen the Complainant”. The failure to reach Sales targets was simply used as a covering justification.
· The setting and increasing of the sales targets was unrealistic.
· Supplementary Sales Leads were allocated in a discriminatory manner by the Line Manger to Male colleagues and not to the Complainant
· The Complainant had received a complimentary message from a senior superior and had many complimentary messages from sales colleagues.
· Non availability of the relevant line Manager for direct evidence and cross examination left the Complainant at a serious disadvantage in the process.
4.2 Issues raised by the Respondent were
· The Complainant was seeking to make an Unfair Dismissal claim, (she did not have the requisite service) under the guise of an Equality claim.
· The Complainant lacked the requisite “prima facie evidence” to support an equality claim. The Legal Authorities were clear on the necessity of appropriate strong evidence.
· The Sales Performance figures clearly supported the Respondent’s case of a performance related termination.
· The Respondent Company had a pattern of considerable staff turnover from all Gender and racial backgrounds due to sales performance issues.
· The non-availability of the Line Manager was not crucial – the current Line Manager was present and could answer all relevant queries in relation to Sales Statistics and sales performance.
5 FINDINGS & CONCLUSIONS OF THE EQUALITY OFFICER
5.1 I have to decide if the Complainant was dismissed in a discriminatory manner on the grounds of Gender and Racial background (in this case being of Polish nationality) and family status. 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 and also material submitted later.
For this claim to succeed it is necessary for the Complainant to satisfy the Tribunal that there is strong credible Prima Facie evidence of discrimination. This evidence must exist irrespective of any views an outside observer might have of the employment practices of a particular employer.
Legal precedent and cases cited in multiple other proceedings point inescapably to this basic requirement.
Section 85A (1) of the Employment Equality Acts 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.
In Arturs Valpeters v Melbury Development Limited (ED a0917) the Labour Court stated “In this case, it was submitted that the Complainant was treated badly by the Respondent and the court was invited to infer that he was so treated because of his race. Such an inference could only be drawn if there was evidence of some weight from which it could be concluded that persons of a different race of 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”
5.2 Clearly the Company was of a multi-racial composition and had a gender mix among the staff. Clear cut Equality and Diversity Policies were in place accompanied by requisite training for Managers.
5.3 The Respondent employer had a vigorous Sales Performance system for sales staff – the staff turnover figures produced was clear evidence of this fact. In the period from June 2012 to January 2014 seven (7) staff were terminated (involuntarily) for Performance issues. Of the seven in question three were Irish with one Pole, one Italian, one French and one German making up the balance. The number of staff employed in the company was in or about 28 during the period.
In terms of an “involuntary” staff turnover figure of this nature, related to performance, any difficulties with an individual’s sales Performance figures was very likely going to be detrimental to their long term employment.
Two of the Complainant’s sales Colleagues resigned from the Company during the terms of the Complainant’s employment. In verbal evidence the Complainant agreed that one of the departures, a female colleague, was largely due to pressures in the Sales environment. It was not suggested that her gender had been an issue.
5.4 Sales statistics produced in the submissions, amplified at the Hearing and in subsequent additional written evidence after the hearing clearly identified a negative Sales Performance question for the Complainant. Sales Performance was the key factor in employment retention. The many involuntary terminations of employment of colleague staff of varying nationalities and genders for performance issues was well known to all staff.
5.5 The Sales Statistics provided by the Respondent and amplified in subsequent correspondence identify a Sales Performance question for the Complainant. The oral evidence given by the current Manager responsible for Sales identified a very rigorous and demanding Sales Model operated by the Respondent. It was accompanied by a considerable turn over in Sales Staff relative to the size of the Sales department. Unsurprisingly the Respondent conceded that the Sales culture did not provide “any guarantees of employment”.
In documents referring to the Sales Plan presented as Exhibit A in the Respondents written submission the clause below was included “I understand that the Plan does not constitute a guarantee of work, job status or employment for any period of time.” The Complaint’s signature of acknowledgement of the overall one page document dated the 19th of April and the 30th of July 2012 were attached.
From the oral evidence I do not think anyone employed by the Respondent could have been under any doubt about the nature of the sales employment and culture in the Company.
At the oral hearing the non-availability for cross examination of the Sales Manager in office at the time of the Complainant’s employment was pointed to by the Complainant. It was alleged that without cross examination of this witness the Complainant’s case was seriously weakened. The Sales Manager was no longer in the employment of the Respondent and was believed to be now outside of Irish jurisdiction.
5.6 However on reflection I took the view that this was not an issue of significance bearing in mind the availability of the relevant and crucial Sales statistics and the availability of the current Manager to offer interpretations and give evidence on these performance statistics under cross examination if required.
5.7 An issue in the context of the then Sales Manager was the methodology by which “Sales Leads” were “Distributed” to staff , including the Complainant, by the then Manager. The Complainant alleged that Sales Leads were unfairly given to male colleagues. From an examination of the “Total Leads” statistics provided by the Respondent it is hard to find any major disparities to the disadvantage of the Complainant.
5.8 The actual manner in which the Complainant’s employment was terminated in January 2013 by the then Sales Manager was raised by the Complainant. Verbal comments by the Manager were referred to. However I feel it is clear that the Sales Manager was not acting alone and was clearly operating in concert with, if not at, the direction of the Senior HR Business Partner. This HR Partner, a lady, answered all correspondence and provided a letter dated January 10th 2013 (one day after the ending of the employment) which the Complainant requested for the department of Social Protection. She gave credible Oral evidence at the hearing in relation to HR matters.
Again I took the view that seeking to get the Sales Manager, it this was even possible, and to the hearing to give direct evidence on these points and be cross examined by the Complainants’ representatives would not really be a major addition to the process. The lady concerned, of Swedish origin, ceased to work for the Respondent in 2013 and now lives outside the Republic of Ireland.
5.9 The Complainant gave evidence that she successfully completed her probationary period and was confirmed in employment after the initial six month period only to be let go after a further three months. There was no doubt that this was not a highlight of the Respondent’s defence but again I could not see any required Prima Facie evidence of Racial/nationality or Gender discrimination in this matter.
5.10 The Respondent had a well-developed and documented Equality, Grievance and Complaints procedure. It was not availed of at any time by the Complainant during her employment.
5.11 In summary I have to come to the conclusion that the Complainant and all her colleagues, irrespective of varying racial origins and different genders, were employed in a very tough and demanding Sales culture. There is no doubt but that she lost out in this Sales culture but there was no credible evidence , to the standards identified in the legal precedents widely accepted in Equality matters of this nature that there was any Racial, Nationality or Gender aspects to her termination of employment.
6 DECISION
I have investigated the above complaints and make the following decisions in accordance with section 79 of the Acts that:
· The Complainant has failed to establish a prima facie case of discrimination on the grounds of race or gender.
· The Complainant has failed to establish a prima facie case of discriminatory dismissal in terms of Section 8 of the Employment Equality Acts, 1998 -2008.
____________________
Michael McEntee
Equality Officer
14th August 2015