DEC-E2016-023

EMPLOYMENT EQUALITY ACTS

DECISION NO. DEC-E2016-023

PARTIES

Szymon Paczkowski

(Represented by Rostra Solicitors)

AND

Permanent TSB PLC

(Represented by A & L Goodbody Solicitors)

File reference: EE/2014/426 & et-153235-ee-15

Date of issue: 5th February 2016

HEADNOTES: Employment Equality Acts – Sections 6 - Gender and Race

Promotion – Training - Victimisation

1. DISPUTE

1.1. This dispute concerns a claim by the complainant that he was discriminated against by the respondent on the grounds of Gender and Race contrary to section 6 (2) of the Employment Equality Acts in relation to discriminatory dismissal in terms of section 8 of the Acts.

1.2. The complainant referred claims to the Director of the Equality Tribunal on 1 August 2014 and 28 January 2015 under the Employment Equality Acts. On 29 October 2015, in accordance with his powers under section 75 of the Employment Equality Acts, the Director General of the WRC, delegated the case to me, Roger McGrath, an Equality 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 which date my investigation commenced. Submissions were received from both sides. In accordance with Section 79(1) of the Employment Equality Acts and as part of my investigation I proceeded to a hearing on 9 November 2015. Final information was received on 14 January 2016.

1.3. At the hearing both parties had legal representation.

1.4. This decision is issued by me following the establishment of the Workplace Relations Commission on 1 October 2015, as an Adjudication Officer who was an Equality Officer prior to 1 October 2015, in accordance with section 83 (3) of the Workplace Relations Act 2015.

2. Summary of the Complainant's Case

2.1 In the Complaint Form, received by the Equality Tribunal on 28 January 2015, the complainant alleges that his employer, the respondent, discriminated against him on grounds of race and gender. He also alleges that the respondent treated him unlawfully by dismissing him for discriminatory reasons and because he opposed discrimination. He outlines in his complaint that after raising a grievance related to race and gender he was frequently verbally offended by his manager who suggested that he look for a new job, that the respondent's actions put him under pressure and exposed him to stress. He says that he had no other option than to resign from his employment, which he did on 1st December 2015.

2.2 It should be noted that the complainant had previously submitted a Complaint Form which was received by the Workplace Relations Customer Service on 1 August 2014. This complaint referred to discrimination by reason of Gender and Race in relation to promotion, training and victimisation. This Complaint Form stated that the most recent date of discrimination was 1 April 2014. At the hearing on 9th November, the respondent stated that the only matters stipulated in the later Complaint Form were under consideration, the matters complained of in the first Complaint were withdrawn. Issues in the written submission, predating the promotion interview, were tendered as background information.

2.3 In a written submission the complainant states that he was employed by the respondent from May 2012, where he worked in the Customer Credit Department as an analyst. In 2014 he applied for a position of senior analyst, but did not get the promotion because of unfair, discriminating treatment. The complainant states that he was better qualified than the other candidates and that he was given an unsatisfactory reason for not being selected for the promotion. The submission states that all the positions were filled by Irish females. In June 2014 a meeting was held to investigate a grievance raised by the complainant relating to the promotion process, however the grievance was not upheld. Following this complaint the complainant resigned, he alleges, in circumstances amounting to constructive dismissal.

2.4 In a narrative submission the complainant's representative summarised the claim. The complainant had applied for an internal promotion to the grade of senior analyst. Despite being the most senior person to apply for the position he was unsuccessful. Three Irish women were selected for the positions. On foot of this the complainant initiated a grievance claim as allowed by the company Grievance Policy. Following the submission of the grievance the complainant's relationship with his level 2 manager broke down. There were increased levels of stress, he felt victimised, he was in mental distress and he decided that he had to leave his employment.

2.5 Through his representative, the claimant submits that he had been encouraged to apply for the post of senior analyst by his level 3 manager. It is the complainant's case that he was an ideal candidate for the position as he possessed both the qualifications and experience required. When he applied he believed he "ticked all the boxes". At the interview for the positions the complainant thought he had performed very well and had answered all the questions asked of him in full. At the end of March 2014 he was told that he had not been successful in his application. Although only two posts were advertised as being available, following the interviews, three people were promoted; all women and all Irish. The complainant was of the view that he was better than the candidates selected, particularly in view of his greater experience. The complainant was not happy with the outcome and sought an explanation form his manager. He was told that the interview panel had been of the view that he had not given practical examples as required in the interview. This lack of examples, he was told, was the reason he had not been selected for promotion.

2.6 The complainant submits that he did not file a formal complaint regarding the interview process until two months after the interview. However, during that two month period the complainant's relationship with his level 2 manager deteriorated. For example emails he sent to this manager were not replied to and he was delegated the highest number of tasks of anyone on the team. A lack of communications with his manager started to cause him stress. Around this time a senior manager called his work "rubbish". At a Quarterly Review the complainant raised the issue of his failure to get promotion with his level 3 manager. He did not get what he considered to be a satisfactory answer. Dissatisfied with the situation the complainant filed a formal grievance on 29th May 2014 alleging discrimination in the selection process for the senior analyst role and mistreatment in his role as an analyst.

2.7 A meeting took place on 12th June to hear the complainant's grievance. The meeting was attended by the Human Resource Manager, two other HR personnel and a senior manager. At the meeting the complainant outlined his story regarding the promotion process and his treatment over the recent past. On 27 June the HR Manager wrote to the complainant confirming, with explanation, that the grievance had not been upheld. The complainant did not appeal this outcome any further as he felt it would get nowhere as none of the issues he had raised were accepted.

2.8 Continuing his narrative the complainant went on to say that following initiation of this grievance his relationship with his level 2 manager deteriorated further. For example at his six-monthly review in July 2014, for the first time ever, he received a rating of "not met expectations", emails were ignored by his manager, his work was called rubbish, his manager said in an abusive manner that he was always looking for help and he was told by his level 2 manger to look for another job. The pressure grew worse and worse. In or around August and September a Personal Improvement Plan was prepared for the complainant. The complainant submits that he was told by his level 3 manager that it was highly likely that he would be dismissed.

2.9 The complainant stated that he could not understand why things had come to this pass; before the interview everything had been fine but within a few months he was being criticised for his behaviour and his quality of work. It was not long before that he had been asked to apply for the higher role and now he was being told he was not good enough for his own role. The situation caused him great distress and he sought medical assistance.

2.10 The complainant submits that he went sick on 29 September as a result of all the bad things that had happened to him. He sought psychiatric help but was feeling worse and worse. As he could not find any help and as his condition was not improving he decided to quit his job with the respondent. His psychiatrist suggested that he should return to Poland.

2.11 In respect to correspondence with the respondent after 29 September the complainant said that he was written to and instructed to visit the company doctor, however he did not receive any feedback from the doctor or the respondent on the matter. The complainant stated that he left Ireland for Poland around 20 December 2014 (an email of resignation had been sent on 1 December 2015). In January 2015 he found out that the respondent had been in contact with him asking him to review his resignation. The complainant said that following his resignation the respondent had written to him but he never got the letter, he did, however, get a soft copy of the letter in January 2015.

2.12 In cross-examination it was put to the complainant that a number of issues raised in his submission related to issues prior to the promotion process. It was clarified that this compliant only related to the promotion process and the subsequent behaviour of management which led to his resignation. When asked why he had not appealed the outcome of the grievance procedure the complainant said that he "didn't see the point." The complainant also reiterated that he felt he had done a good interview, had answered all the questions in full and given examples as required. He thought his low score was a very unfair result.

2.13 In cross-examination, the complainant went on to state that he felt he was being victimised and that he had been bullied by a particular manager. Such bullying included an incident when this manager told him to get another job. When he raised this with his level 3 manager he was advised to tell HR, however he did not raise a formal complaint as he thought that would be worthless. The complainant agreed that he had not raised the matter of bullying elsewhere, but he did not get assistance form senior colleagues.

2.14 In cross-examination, the complainant stated that the later promotion of a colleague, an Irish man, to the senior analyst post, only transpired after he had raised the gender issue.

2.15 In closing submissions, the complainant said that after all that had happened to him he could not go back to work, everyone was against him. The message he got from management was clear, "you have to leave".

3. Summary of Respondent's Case

3.1 In submissions made in advance of the hearing, the respondent rejected the complainant's claims and denied that he had been discriminated against on grounds of gender or race. The respondent submitted that a comprehensive review of the selection process for the promotion to senior analyst was carried out and it found that the process was fair and transparent. This review found that the claimant had not performed well at interview. The respondent's written submission also denied that there had been any victimisation of the complainant.

3.2 At the hearing the level 3 manager, a Polish male, outlined that he had worked with the respondent since October 2014 and had been an analyst for two years. He had applied for a promotion in the past but had been unsuccessful, he did get promoted at the second attempt. He said that one of the women promoted would say she was American. He had never experienced any discrimination due to gender or race. The level 3 manager was on the interview panel and submitted that the same questions were asked to and the same scoring system used to assess each candidate, to make sure everyone was treated fairly. He said other candidates scored poorly but this had nothing to do with gender or race.

3.3 Continuing his evidence the level 3 manager agreed that the complainant had raised issues with him regarding his poor relationship with his level 2 manager; he had advised the complainant to "go official". There had been an incident where the complainant had a loud conversation with his level 2 manager but although a female colleague confided with him that she could not work in this atmosphere she did not feel the need to report the incident. The witness said that his attitude to the complainant did not change after the complainant had raised his grievance. Regarding the Personal Improvement Plan the witness denied that he ever warned the complainant that if he did not agree to participate he would be dismissed, he did say that he should sign up, that they wanted him to improve and that if he did not there would be problems. He denied he had ever told the complainant not to speak Polish and that in fact they had been encouraged to speak Polish. He was surprised when the complainant resigned. He said there was no discrimination in work.

3.4 In cross-examination the level 3 manager explained the situation regarding two of the women who had been made senior analyst; one looked upon herself as American and the other as Malaysian. Regarding the loud conversation between the complainant and his manager he agreed that the witness to this conversation may have come to him to raise the matter. He had spoken with both the complainant and the level 2 manager in wake of the incident and he took it the issue had been sorted. He denied that he had told the complainant that he should look for another job when he started on the Personal Improvement Plan.

3.5 The next witness, the level 1 manager, outlined that the team was a mix of race and gender and that he got on well with the complainant. The reason the complainant had scored so poorly at interview was that he had failed to supply good examples as required. Other candidates had performed better. He met with the complainant after the interview and had gave him feedback on the interview. It was after this that the complainant raised his grievance. The level 1 manager submitted that the complainant was not treated any differently after he raised the grievance, that he had never told him not to speak Polish and he refuted any allegations of discrimination based on gender or race.

3.6 In cross-examination the level 1 manager stated that he was looking for performance at the interview as being newly arrived in the company he had little knowledge of candidate's experience. He said that the Irish male who was promoted after the complainant had raised his grievance was promoted to fill a gap created by a resignation. He said that the relationship between the complainant and his level 2 manager were never brought to his attention.

3.7 A HR Specialist who had only recently joined the respondent company outlined the sequence of events around the correspondence with the complainant. A letter (email) of resignation was received on 1 December 2014. As HR were aware that there were issues relating to this employee they replied to the resignation letter (email) on 3 December 2014 asking the complainant to reconsider his position and informing him that his resignation would not be processed to allow him some time to do so. There were difficulties in relation to contacting the claimant in December 2014 but an email was received from him on 7 January 2015 stating that he was going ahead with his resignation. Due to a dates mix up the HR Specialist said that the complainant had not been asked to repay a €3,000 overpayment. The HR Specialist said she thought the grievance process had been carried out fairly and that although the policy allows for a further escalation of a grievance this was not pursued by the complainant.

4. Findings and Reasonings

4.1 Section 85A of the Employment Equality Acts sets out the burden of proof that applies to complaints of discrimination. In the first instance, it requires the complainant to establish facts upon which they can rely in asserting that they were discriminated against. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised. Addressing the issue of the burden of proof in Melbury Developments Ltd. V Valpeters [2010] E.L.R. 64, the Labour Court held, at page 68, as follows:

"Section 85A of the Employment Equality Act provides for the allocation of the prohibitive burden in cases within its ambit. This requires the Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case 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 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 establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule."

4.2 Applied to this case, this approach means that the complainant must first prove as a fact one or more of the assertions on which his complaint of discrimination is based. A prima facie case of discrimination can only arise if the complainant succeeds in discharging that evidential burden. If he does, the respondent must prove that the complainant was not discriminated against on grounds of his gender or race. If the complainant does not, his case cannot succeed.

4.3 I will proceed to consider the issue of whether the complainant has established a prima facie case of discrimination on the gender and/or race grounds.

From the information submitted I find that:

4.4 A panel of three interviewed all candidates and although that panel was not identical for all five interviews which took place the HR specialist was on the panel for all the interviews, thus providing consistency in the process. All candidates were asked the same questions and were marked using a prepared scoring matrix. In a structured, competency based interview process as utilised in this case, candidates are required to provide concrete examples from the past of the competencies sought for the position. If a candidate fails to supply the panel with good examples then it is unlikely they will be successful in being selected for the post. I was given copies of the interview notes and scores. The complainant's score was the lowest of all the candidates and in fact did not pass the threshold required to be selected. Following the interview the complainant sought and received detailed feedback on his interview from his level 1 manager, who had been on the interview panel.

4.5 It is well established law that the Tribunals/Adjudication Officer's role is not to decide whether the most meritorious candidate(s) were selected but rather to determine whether the selection process was tainted by discrimination on any of the impugned grounds (for example see Lavey –v- HSE Dec-E2008-046 & UCA + L –v- Kulwant Gill EDA0817). In my view the complainant did not having supporting evidence to indicate that the interview process was flawed by dint of discrimination on the grounds of gender and/or race.

4.6 The complainant alleges that he his relationship with his level 2 manager deteriorated after the interview had taken place and there were alleged instances of abuse. This may be the case but in evidence the complainant failed to establish a connection between the alleged adverse treatment complained of and the discriminatory grounds invoked. The witnesses were adamant that no discrimination took place and I tend to believe their evidence.

4.7 It is significant that having raised a grievance, which was subject of an investigative meeting on 12 June 2014, the complainant chose not to process the grievance any further when his complaint was not upheld, as was his right under the company Grievance Policy. If he genuinely believed that he was being subject to discriminatory treatment then he should have followed through and escalated his complaint as allowed under the company policy.

4.8 In this case the complainant took it upon himself to resign, he believes this was a constructive dismissal. Section 74(2) of the Acts states that victimisation occurs where dismissal or other adverse treatment of an employee occurs as a reaction to a complaint of discrimination made by an employee to an employer. The complainant submits that the circumstances which led to the termination of employment were directly linked to the initiation of his grievance regarding his failure to get promoted. The respondent categorically disagreed with this assertion. After careful consideration of the evidence put forward I do not believe there is a relationship between the grievance being initiated and the termination of employment. I therefore do not believe that the allegation of victimisatory dismissal stands.

4.9 My role is not to decide whether a dismissal, constructive or otherwise, took place, it is to determine whether the complainant was discriminated against on grounds of race and gender and/or if he was discriminated against in response to him opposing acts of discrimination in the workplace. To my mind no evidence of weight has been tendered to indicate that the complainant was discriminated against. Nor has he shown that he suffered adverse treatment as a result of making a claim of discrimination.

4.10 Taking the evidence as a whole I am satisfied that the complainant has not discharged the evidential burden which he carries. Accordingly, his claim cannot succeed.

5 DECISION

5.1 I have investigated the above complaint and make the following decision in accordance with section 79 of the Employment Equality Acts and section 41 (5) (a) (iii) of the Workplace Relations Act 2015 that the complainant has not established facts upon which it can be presumed that he was subject to discriminatory treatment or dismissed in a victimisatory manner on grounds of race and/or gender.

____________________

Roger McGrath

Adjudication Officer/Equality Officer

5th February 2016