DEC-E2016-107

EMPLOYMENT EQUALITY ACTS

DECISION NO. DEC-E2016-107

PARTIES

A Former Employee

-AND-

A Financial Services Company

(Represented by Claire Bruton BL,

instructed by Mason Hayes & Curran)

File Reference: EE/2014/229

Date of Issue: 19th July 2016

1. DISPUTE

1.1 This dispute concerns complaints of discrimination on the grounds of race by association in the context of promotion, training & conditions of employment, of victimisation & harassment and of discrimination on the grounds of disability also in the context of promotion, training & conditions of employment along with a failure to provide reasonable accommodation under the Employment Equality Acts (hereinafter also referred to as ‘the Acts’), arising from the Complainant’s employment with the Respondent.

1.2 The Complainant referred the aforesaid complaint under the Acts to the Director of the Equality Tribunal and it was received on 17th April 2014. On 2nd September 2015, in accordance with his powers under Section 75 of the Acts, the Director delegated the case to me, Aideen Collard, an Adjudication / 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 had been sought and received from the Parties along with a copious volume of supporting documentation. As required by Section 79(1) of the Acts and as part of my investigation, I proceeded to a hearing on 10th September 2015 and adjourned to enable the Complainant to apply for legal representation in circumstances where he had discharged his previous Solicitors. As the legal assistance sought was declined he represented himself at the substantive hearing held on 24th and 25th November 2015.

1.3 The Complainant was assisted with the services of an interpreter and I also outlined the relevant provisions of the Acts in layman’s terms. A number of witnesses gave evidence on behalf of the Respondent. All written and oral evidence and submissions presented to the Tribunal including documentation submitted during the hearing have been taken into consideration when coming to this decision. I also indicated that I would be relying upon the relevant statutory provisions and case law. Given the sensitivities of this complaint, I have exercised my discretion to anonymise this decision.

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

2. PRELIMINARY ISSUES

2.1 This complaint was received by the Equality Tribunal (now WRC) on 17th April 2014. It appears that it was misdirected by the Respondent internally and so only became aware of it in or around October 2014. I was also informed that the Complainant had a claim of constructive dismissal due to be heard by the EAT. Counsel for the Respondent also outlined the potential legal effects of a decision in this case on his claim before the EAT. Other preliminary objections in relation to the claim of race by association with a work colleague have been addressed substantively having heard the evidence in relation to same. Counsel for the Respondent also objected to the Complainant extending his complaint to matters that arose after submission of his complaint form and to matters in excess of six months beforehand in circumstances where he had referred to matters going back as far as 2011 in his submissions and she relied upon the Labour Court decision of County Cork VEC -v- Hurley EDA1124 in this respect.

2.2 In relation to the applicable time limits, Section 77(5)(a) of the Acts provides:

“Subject to paragraph (b), 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 of the discrimination or victimisation to which the case relates or, as the case may be, the date of its most recent occurrence”, extendable to 12 months for reasonable cause under Section 77(5)(b). Section 77(6A) deals with the different forms of continuing discrimination or victimisation under the Acts. Essentially and as confirmed in County Cork VEC -v- Hurley, it provides that where the complaint of discrimination or victimisation refers to a series of separate acts or omissions sufficiently connected so as to constitute a continuum as asserted in the instant case, there must be such acts or omissions that fall within the requisite time limit in order for acts or omissions outside the time limit to be taken into account. In that case, the Labour Court also held that evidence in respect of matters arising after submission of the claim to the Equality Tribunal could only be heard for its probative value in respect of any facts in issue in relation to matters comprehended by the claim at the time it was made.

2.3 As this complaint is primarily based upon the Complainant’s support of a colleague in relation to his complaint of racial discrimination which was first brought to management’s attention via his complaint of racial discrimination by association in or around July 2013, I indicated that I would hear evidence in relation to his complaints from July 2013 onwards on the basis set out in County Cork VEC -v- Hurley. For the avoidance of doubt, I have not made any findings of fact in relation to any events arising after 17th April 2014 and which may also relate to the complaint of constructive dismissal before the EAT.

3. SUMMARY OF THE COMPLAINANT’S EVIDENCE AND POSITION

3.1The Complainant confirmed that he was initially employed by the Respondent as a customer support representative on 19th September 2005 and in August 2010 was selected internally for the role of Merchant Technical Integration Specialist. This entailed working as a team to set up new accounts for customers with the Respondent. The Complainant went on sick-leave from 19th November 2013, returning for a few days in March 2014 and four weeks in April 2014 before remaining on sick leave until his resignation in May 2015. Medical Reports cited various psychiatric issues including depression.

3.2The Complainant’s employment had been uneventful until in or around 2011. He firstly outlined the basis for his complaint of discrimination on the grounds of race by association with a colleague on the same team, a German national of African ethnicity, Mr A, whom he contended had experienced discrimination on the grounds of race within the workplace and had become isolated within the team. He had identified with Mr A and offered him support by discussing his issues with him. He contended that from in or around 2011, he began to experience similar issues in the workplace including being passed over for internal promotions, not being allocated work and not being recognised for his work. He contended that he had made a complaint under the internal grievance procedure in 2011. He further contended that management would have been aware of his support for Mr A as they monitored him and his computer. On 14th February 2013, he had also sent a general enquiry to the Business Ethics Office as to how to go about making a complaint of discrimination which he contended would have drawn management’s attention to his support of Mr A. Both the Complainant and Mr A made formal complaints under the internal grievance procedures in or around July 2013. Referring to Mr A in his complaint dated 30th July 2013, the Complainant stated: “Unfortunately as soon as I was good friend with him I started to get the same treatment as him and understood how bad it could be to be discriminated and all the method in use to do that.” During the investigation of his complaint, the Respondent had not permitted Mr A to accompany him in relation to his appeal hearing in February 2014 on the basis that he had a similar complaint in train. In the course of his submissions, he indicated that he was unhappy with the Respondent’s conduct of his complaint and appeal which were not upheld.

3.3The Complainant outlined the last manifestation of events occurring from when he had first explicitly supported Mr A in relation to his internal complaint of racial discrimination and submitted his own complaint arising from same in or around July 2013, which he considered amounted to discrimination on the grounds of race by association and/or victimisation and harassment, numbered for convenience:

(1) On 9th October 2013, his Line Manager, Mr B had asked him change seats to an area where he felt isolated and which he felt was aimed at limiting his communication with the rest of the team.

(2) On 22nd October 2013, some of his work on a report disappeared from his desktop interface.

(3) When he returned from sick-leave on 27th March 2014, he felt unwelcome and his computer was dusty and disconnected requiring him to work in the canteen without access to his email.

(4) During this period, he felt that owing to new rules in place regarding procedures for dealing with queries (tickets), that his communication with co-workers was being deliberately thwarted.

3.4The Complainant also gave evidence of finding a plastic bullet on his desk inscribed “go away” and of finding the tires on his car flat after making his complaint but had not reported either incident.

3.5In relation to his claim that the Respondent had discriminated against him on the grounds of disability and failed to afford him reasonable accommodation, the Complainant confirmed that having returned to work for two days on 27th & 28th March 2014, he went on sick leave again and his email request to HR to work from home on 31st March 2014 was refused. The Respondent further failed to accede to a request to transfer him to a different department based upon his Psychiatric/Medical Report of 29th March 2014.

3.6Counsel for the Respondent put its position in respect of the above complaints to the Complainant including any explanations it intended to proffer in direct evidence. He was not prepared to accept these explanations and responded that he still had his doubts in relation to the Respondent’s motives. It was also put to him that he had not been very involved in supporting Mr A in relation to his complaint.

4. SUMMARY OF THE RESPONDENT’S EVIDENCE AND POSITION

4.1 The Respondent rejects these complaints in their entirety and contends that no alleged discriminatory act as alleged or at all took place as against the Complainant. At all material times, the Respondent sought to operate a work environment free of discrimination and one which allows its employees to be treated with dignity, respect and courtesy. The Complainant was furnished with the Company Employment Policy which entitled him to raise any allegations of discrimination and victimisation.

4.2 Various managers who had dealings with the Complainant in relation to the matters complained of and his internal grievance process gave evidence on behalf of the Respondent. The Director of Customer Service and a Senior Manager at the material time gave evidence of the internal grievance procedures and the basis for arriving at their findings in relation to the Complainant’s internal complaint and appeal which were not upheld. They confirmed that these had been conducted transparently, his complaints had been investigated fully and they had found no evidence to support his complaints and in particular, his allegations of discrimination on the grounds or race arising from his friendship with Mr A. Both had recommended working constructively with the Complainant to deal with communication issues.

4.3 The Complainant’s Line Manager at the material time, Mr B, in respect of which his complaints were primarily directed outlined the nature of the work processes required in the Complainant’s position. He outlined the supports available for vulnerable employees including internal employee assistance and HR support. He confirmed that the Complainant had struggled with aspects of his work around presentation and communication and he had refused to avail of an anonymous online feedback system when suggested. However he had been improving in these areas and was a competent engineer, receiving a bonus just before submitting his complaint. As the skill-set involved is quite specific, he confirmed that there are not many career opportunities in the area which can lead to employee frustration. He confirmed that the Complainant’s 2011 grievance had never been received by management and had been appended to the later complaint. In any event it did not make direct reference to his support of Mr A.

4.4 Mr B went on to address each of the Complainant’s specific complaints as outlined above, confirming:

(1) The Complainant was moved within his team to accommodate the training in of a new member of staff and as part of an annual reshuffle of staff and everyone was treated likewise in this respect.

(2) When part of a report that the Complainant had been working on had gone missing from his desktop interface, he had the issue resolved and report back to him within a few minutes of being notified.

(3) Whilst the Complainant had been on sick leave, computers had been replaced and upon his return to work, a new computer and email access had been set up for him on the same day without issue.

(4) The new work procedures as alluded to by the Complainant had already been in operation within the Company and were extended to the Complainant’s team in or around 2013 as part of an ongoing rationalisation process which applied to everyone and therefore did not target him specifically.

The Complainant questioned Mr B regarding the above and in particular, the level of communication regarding the change in work practices. He also denied that he had a new computer on his return to work and contended that it had been set-up with software specifically to monitor him which Mr B denied.

4.5 The HR Consultant who had dealt with the Complainant’s sick leave gave evidence in relation to his complaints of disability discrimination and a failure by the Respondent to provide reasonable accommodation. He confirmed the dates of the Complainant’s sick leave period. In relation to the refusal of the Complainant’s request to work from home on 31st March 2014, the HR Consultant confirmed that no basis for this request had been proffered and as indicated to him in writing at the time he should not have been working if he was unwell. In relation to the allegation that the Complainant’s request to be transferred to another Department owing to his psychiatric issues had been refused, he confirmed that this had not arisen at the time of making the complaint herein on 17th April 2014 as the request to transfer had first been made formally in accordance with Company procedures on 22nd April 2014. He also confirmed that he had overseen the Complainant’s appeal which had been postponed at his request as he was on sick-leave. Thereafter the Complainant had refused to engage with the Respondent in terms of providing him with reasonable accommodation before resigning in May 2015.

4.6 Counsel made various oral and written submissions on behalf of the Respondent. In particular, she submitted that in order to have locus standi to substantiate a claim of victimisation arising from his support of Mr A, the Complainant would have to demonstrate that he “represented or otherwise supported a complainant” in relation to taking an action under the Acts as defined by Section 74(2)(c) of the Acts. Whilst the Complainant may have been a friend of Mr A, there is no evidence that he formally supported Mr A in relation to any such protected action including his internal grievance taken in July 2013. Additionally, as a matter of law there must be a strong connection for discrimination by reason of association of a person’s race to arise within the meaning of Section 6(1)(b) of the Acts as found in Coleman -v- Attridge Law (2008) ICR 1128. Even if a close connection is found which is sufficient to establish discrimination by association, this does not of itself establish discrimination or less favourable treatment which appears to be contended. The Complainant must also provide evidence of less favourable treatment by the Respondent on the grounds of race in order to meet his burden of proof as required by Section 85A of the Acts. It is submitted that the Complainant has abjectly and singularly failed to do so and that his claims under the Acts should, be dismissed in their entirety. The Respondent also relies on the fact that he exhausted an internal grievance procedure in relation to the same subject-matter of the complaints herein and after a thorough investigation, his complaints were not upheld.

4.7 In relation to the complaint of disability discrimination, it was submitted that as the Complainant had been on sick leave for the material period, save for two short periods where no disability related issues were raised, he could not have experienced less favourable treatment on the grounds of disability. Furthermore, a complaint of a failure to provide reasonable accommodation could not have arisen as this complaint was submitted before his formal request for reasonable accommodation. It was also submitted that as the Complainant’s allegations of disability discrimination and a failure to provide reasonable accommodation appear to arise from 29th March 2014 onwards, they are a separate manifestation or cause of action under the Acts and cannot constitute a continuum of discrimination to earlier complaints.

4.8 Overall, the Respondent submits that the Complainant has not established a prima facie case of discrimination on the grounds of race by association, victimisation, harassment, discrimination on the grounds of disability or of a failure to provide reasonable accommodation under the Acts.

5. REASONING AND CONCLUSIONS

5.1 I propose dealing with each of the Complainant’s complaints as indicated in his complaint form in light of all the evidence. Section 85A of the Acts sets out the burden of proof which applies to such claims. As well established by the various employment fora, this requires the Complainant to establish, in the first instance, facts from which discrimination may be inferred. 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. When investigating a complaint, the role of the Tribunal includes undertaking an examination of any conflicts of fact in the evidence presented by the Parties to arrive at reasoned findings of fact.

Discrimination on the Grounds of Race by Association

5.2 Section 6(1)(a) of the Acts 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(1)(b) deals with discrimination by association and provides that where “a person who is associated with another person- (i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and (ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination.” Section 6(2)(h) of the Acts defines the discriminatory ground of race as arising in circumstances when the person is "…of different race, colour, nationality or ethnic or national origins."

It is common-case that Mr A was of African ethnicity and that both the Complainant and Mr A submitted internal complaints under the Company grievance procedures in or around July 2013, alleging racial discrimination and discrimination on the grounds of race by association respectfully. It is not in dispute that the Complainant and Mr A were friendly. Based on the evidence, I am satisfied that management could only first have associated the Complainant with Mr A upon the submission of their respective internal complaints in July 2013 and not at any earlier stage. I have taken the Complainant’s allegations of discriminatory treatment at their height and am not satisfied that they could conceivably constitute less favourable treatment on any of the discriminatory grounds under the Acts. The matters complained of are all routine workplace occurrences without any evidence of a discriminatory element or intent. It is therefore unnecessary or appropriate to consider the strength of the Complainant’s association with Mr A for the purposes of this complaint.

Victimisation for taking a protected action under the Acts and/or for supporting Mr A

5.3 In relation to the Complainant’s complaint of victimisation arising from his making a complaint arising from his support of Mr A and/or supporting Mr A in making his complaint of racial discrimination, Section 74(2) of the Acts provides: “For the purposes of this Part victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to: (a) a complaint of discrimination made by the employee to the employer or …(c) an employee having represented or otherwise supported a complainant,…”. In Department of Defence -v- Barrett EDA1017, the Labour Court set out the three components which must be present for a successful claim of victimisation under Section 74(2) of the Acts as follows: “(1) The Complainant had taken an action of a type referred to at Section 74(2) of the Acts; (2) The Complainant was subjected to adverse treatment by the Respondent, and; (3) The adverse treatment was in reaction to the protected action having been taken by the Complainant.” The broad wording of Section 74(2) of the Acts allows for a wide range of employer conduct to fall within the definition of victimisation. What might appear to be routine employer-employee dealings on their face may in fact constitute victimisation, for instance if internal procedures are more rigorously enforced as a reaction to an employee undertaking a protected act. Therefore, an objective examination of the factual matrix pertaining between the Parties is required.

5.4 Again it is common-case that Mr A was of African ethnicity and that both the Complainant and Mr A submitted internal complaints in or around July 2013, alleging racial discrimination and discrimination on the grounds of race by association respectfully. Therefore for the purposes of this exercise, I am prepared to accept that the Complainant could have been deemed as undertaking a protected action within the meaning of Section 74(2) of the Acts and therefore meets the first criterion. However, having considered all of the evidence in relation to the four incidents of alleged victimisation that post-dated the Complainant and Mr A’s complaints, on the balance of probabilities, I am not satisfied that the matters complained of could conceivably constitute adverse treatment. In particular, I am satisfied that the change of seating and introduction of new work practices applied equally to everyone on the team and were not used to target the Complainant specifically. In relation to his complaint about work briefly going missing from his desktop interface and computer and email not being set-up on his return to work, I find that these are routine workplace occurrences without any evidence to suggest otherwise and which were fully resolved within a short time period upon being brought to the Complainant’s Line Manager’s attention. Therefore I am satisfied that the Complainant was not subjected to any adverse treatment and consequently, find that he has not made out a prima facie claim of victimisation on any basis.

Harassment

5.5Section 14(A) of the Acts broadly provides that harassment is any “…unwanted conduct related to any of the discriminatory grounds”. I have examined the conduct complained of by the Complainant in the context of this Section and find no evidence of harassment. The only potential incident that could be construed as harassment related to his finding a plastic bullet on his desk inscribed “go away” and of finding the tires on his car flat after making his complaint. Even if I accept that this occurred, there is no evidence to suggest this emanated from any of the discriminatory grounds including race or disability and furthermore, the Complainant confirmed that he had not informed anyone of this incident. In this respect, I note that he was furnished with a robust anti-harassment policy which could have been utilised.

Discrimination on the grounds of Disability and Failure to Provide Reasonable Accommodation

5.6 The Complainant has not proffered any evidence of less favourable treatment on the grounds of disability in the context of promotion, training, conditions of employment or otherwise, particularly as he was out on sick leave for the material period save for a short period where no issues arose. I note that during this period, the Complainant was referred to the Company Doctor for assessment. I am satisfied that the Respondent’s explanation for not acceding to his request to work from home on 31st March 2014 was reasonable in the circumstances and that the appeal in relation to his internal complaint was appropriately handled in the circumstances. As a formal request for reasonable accommodation had not been made until 22nd April 2014, I find that any potential complaint under Section 16(3) of the Acts could not have crystallised before this claim was submitted on 17th April 2014 and therefore falls outside my remit.

6. DECISION

6.1 I have concluded my investigation of the complaints herein and based on the aforementioned, find pursuant to Section 79(6) of the Employment Equality Acts that the Complainant has not made out a prima facie case of discrimination on the grounds of race by association, victimisation, harassment, discrimination on the grounds of disability or a failure to provide reasonable accommodation under the Employment Equality Acts and accordingly, I dismiss this complaint in full.

______________

Aideen Collard

Adjudication / Equality Officer

19th July 2016