ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00000155-B

Complaint(s)/Dispute(s) for Resolution:

Date of Adjudication Hearing: 24th May 2016

Workplace Relations Commission Adjudication Officer: Orlaith Mannion

Decision:

EMPLOYMENT EQUALITY ACTS 1998-2015

An Accountant

versus

A Financial Services Provider

File reference: CA-00001088/AdJ-00000155

Keywords: Employment Equality Acts, Civil Status, Family Status, Age, Race, Access to promotion, Access to training, No prima face case

Dispute

1.1 The case concerns a claim by an accountant against a provider of financial services. His claim is that he was discriminated against on the grounds of Civil Status, Family Status, Age and Race/Nationality in terms of 6(2)(b), (c), (f) and (h) of the Employment Equality Acts 1998 - 2015 [hereinafter referred to as ‘the Acts’] in relation to access to promotion and training. He also claims harassment on the aforementioned grounds as well as victimisation. As per Section 102 of the Acts, he opted to have his dismissal investigated as unfair rather than discriminatory, the dismissal is not considered here.

1.2 The complainant referred a complaint under the Acts to the Workplace Relations Commission on 13th October 2015. On 3rd May 2016 in accordance with his powers under Section 16 of the Workplace Relations Act 2015), the Director General delegated the case to me, Orlaith Mannion, an Adjudication Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director General under Part VII of the Acts. On this date, my investigation commenced. and a joint hearing was held on 24th May 2016 as required by Section 79(1) of the Acts.

Summary of the complainant’s case

2.1 The complainant submits that he was the oldest employee with the financial services provider and the only employee with children. He submits that there was a long-hours culture there which is not family-friendly. He was expected to work long hours and sometimes come in at weekends. The employees who stayed late were the ones who did not have children and therefore they were promoted quicker.

2.2 He also submits that he was treated differently because he is a different nationality. He was born in what is now Ukraine but identifies as Russian. His parents and his wife also identify as ethnic Russians. When there was unrest in Eastern Ukraine and a colleague was critical of Russia, the complainant submits that he was upset over this as she did not understand the problem as he did. He submits that colleagues laughed at him for putting water rather than milk in his porridge. He submits that is what people do where he is from so for colleagues to be quizzical about it is discrimination on the ground of race. He submits that Ms A (Director of the respondent) said in relation to St Petersburg ‘That is the last place I would go to’. He maintains that he was also not allowed to speak to other Russian-speaking colleagues in Russian.

2.3 The complainant also submits that a colleague used to joke with him about having four daughters. He submits that this colleague thought he was inferior because the complainant had daughters rather than sons.

2.4 Regarding harassment, he submits that he was deliberately poisoned by his colleagues at a Christmas party. He submits that could be the only conclusion as he was careful about how much he drank. Without warning, he was put into a taxi and sent home.

Summary of the respondent’s case

3.1 The respondent denies all allegations. It submits that it has a diverse workforce – employing people of all (working) age-groups and a variety of nationalities and family statuses.

3.2 The respondent categorically denies that the complainant is the oldest employee there. As it is a customer-facing environment most employees do occasionally stay past normal working hours to get the job done. However, employees get a generous 25 days Annual Leave excluding bank holidays. They are also paid generously – the complainant’s salary was €55,000 (plus bonus as well as life assurance and medical insurance paid by the respondent).

3.3 Regarding Ukrainian/Russian politics, the complainant acknowledged at the hearing that this colleague never raised the issue with him again. The respondent fully accepts that he understands more about the issues that his colleagues did. English is the working language of the office and that is what is encouraged. Polish colleagues revert to English when an English-speaking person enters the room. The respondent points out that there is no clear nexus between the way somebody likes his porridge cooked and nationality. Ms A was unequivocal in direct evidence that she did not say that she would never visit St Petersburg. On the contrary, she loves travel and would very much like to see the Hermitage Museum there.

3.4 In relation to having daughters rather than sons, the respondent submits that it cannot see how this could be a source of ridicule.

3.5 The respondent submits that it is aghast at the allegation of poisoning. On the night in question, the respondent’s table was beside the former employer (who he also took a case against) of the complainant. The respondent submits that this naturally made the complainant nervous. He drank too much alcohol. That is why Ms B (his line manager) suggested a taxi home.

Conclusions of the Equality Officer

4.1 Section 6(1) of the Act provides that discrimination shall be taken to occur where on any of the discriminatory grounds mentioned in subsection (2) one person is treated less favourably than another is, has been or would be treated.

(i) Was the complainant discriminated against on the grounds of civil status, family status, age and race in relation to access to promotion in terms of 8(1)(d) of the Acts?

(ii) Was the complainant discriminated in relation to access to training on ground of civil status, family status, age and race in terms of 8(1)(c) of the Acts?

(iii)Was the complainant harassed within the meaning of Section 14 of the Acts?

(iv) Was the complainant victimised as defined in Section 74 of the Acts?

4.2 In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to Section 85A of the Acts. The Labour Court has stated in Melbury Developments Limited and Valpeters:

Section 85A of the Act provided for the allocation of the probative burden in cases within its ambit. This requires that the complainant must first establish facts from which discrimination may be inferred. While those facts will vary from case to and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establish the primary facts fairly and squarely on the complainant and the language of this provision admits of no exceptions to that evidential rule.[1]

Generally I preferred the evidence of the respondent. It was more credible and they were able to disprove many of his assertions e.g he was the oldest employee and only those without children were promoted.

Access to Promotion

4.3 The respondent gave cogent evidence that the qualitative aspect of the complainant’s work was simply not good enough to warrant promotion. Ms B (his line manager) gave cogent evidence of examples where his work had to be rechecked or where he did not meet deadlines. I am satisfied that this is the reason that the complainant was not promoted rather than for discriminatory reasons on the grounds of civil status, family status, age and race.

Access to Training

4.4 Regarding access to training, the only example the complainant could give is what is known in corporate-speak as a ‘group hug’. This referred to a junket to one of the respondent’s offices in Europe. However, some employees have to remain in the Irish office to ‘keep the home-fires burning’. As the complainant was a new employee at the time of this event, he was part of a group that was not selected to attend. I am satisfied that he was not discriminated on the grounds of civil status, family status, age and race regarding access to training.

Harassment

4.5 Section 14A (7) of the Act defines harassment as any form of unwanted conduct related to any of the discriminatory grounds and being conduct which has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person. Such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material.

4.6 Had the complainant been poisoned, this would be harassment on the high end of the spectrum. However, I fully accept the respondent’s contention that he was drink was not tampered by any of his colleagues. Therefore, this strand of his case must fail.

Victimisation

4.7 Section 74 (2) of the Act states victimisation occurs where dismissal or other adverse treatment of an employee by his employer occurs as a reaction to a complaint of discrimination made by the employee to the employer, any proceedings by a complainant, an employee having represented or otherwise supported a complainant, the work of an employee having been compared with that of another employee for any of the purposes of these Acts, an employee having been a witness in any proceedings under this Acts, an employee having opposed by lawful means an act which is unlawful under these Acts, or an employee having given notice of an intention to take any of the above actions.

4.8 During his employment, the complainant never raised an issue regarding how he was treated connected to his nationality, the fact he was married with children or his age. Nor did he engage in any of the other actions in Section 74(2). Therefore he is not entitled to claim victimisation.

Decision

5.1 I have concluded my investigation of the complaints of the accountant and hereby make the following decision in accordance with Section 79(6) of the Acts and 41(5) of the Workplace Relations Acts. I find that

(i) The respondent did not discriminate against the complainant regarding access to promotion on the ground of civil status, family status, age and race.

(ii) The respondent did not discriminate against the complainant regarding access to training on the ground of civil status, family status, age and race.

(iii) The complainant was not harassed within the meaning of Section 14A of the Acts.

(iv) The complainant was not victimised as defined in Section 74(2) of the Acts.

Therefore his complaints fail in their entirety.

_______________
Orlaith Mannion

Adjudication Officer

Dated: 26th August 2016

[1] Labour Court Determination No. EDA0917