DEC-E/2017/062
PARTIES
Anthony Keane
Vs
Beechfield Group t/a Mount Hybla Nursing Home
(Represented by Amory’s Solicitors)
FILE NO: Et-158676-ee-15
Date of issue: 10th of August, 2017
1. Dispute
This dispute involves a claim by a complainant that he was discriminated against by the respondent on the ground of race, in terms of section 6 (2) and contrary to section 8 of the Employment Equality Acts, 1998 to 2015 in respect of promotion. There are also claims of harassment on the ground of race and of victimisation.
2. Background
2.1 The complainant referred a complaint against the above respondent under the Employment Equality Acts 1998 to 2015 to the Equality Tribunal on the 24th of July, 2015.
2.2 In accordance with his powers under section 75 of the Employment Equality Acts, 1998-2015 the Director delegated the case on the 30th of January, 2017 to me, Orla Jones, an Adjudication/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 3rd of March, 2017. Final information in respect of this matter was received on the 31st of March, 2017.
2.3 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.
3. Summary of complainant’s case
3.1 It is submitted that the complainant
· was employed by the respondent from the 11th of March, 2013 to the 3rd of September, 2015 as a Health Care Assistant,
· was asked by the respondent to cover up his tattoos and to get long sleeved tops for work,
· was told to refine his accent as he had a broad Dublin accent,
· was discriminated against on grounds of race in respect of his pay and in respect of a failure to be promoted to Lead Carer,
· was often phoned at home while off duty.
4. Summary of Respondent’s case
4.1 The respondent submits that
· it wishes to refute in its entirety the claims of discrimination on grounds of race and/or nationality made by the Complainant,
· the Complainant was employed by the respondent from the 11th of March, 2013 to the 3rd of September, 2015 as a Health Care Assistant,
· the respondent has a dress code for all employees and due to the degree of tattoos on his arm the complainant was asked to wear long sleeves and had no issue with this. Two other employees with tattoos were asked to do the same,
· the complainant was asked not to use an “aggressive tone” even if he felt he had just cause in giving out to staff,
· the complainant was advised that his interpersonal skills and tendency towards aggression with staff impacted on his potential consideration for a Lead Carer Post,
· the complainant and other staff are sometimes phoned at home when off duty to attend for a meeting if necessary,
· the complainant was on a higher hourly rate than his peers and so he did not receive an increase during the March review.
5. Preliminary issues
5.1 Preliminary issue – Time Limits
5.1.1 Section 77(5) (a) of the Acts provides provides that a complaint has to be referred within six months of the most recent occurrence of the alleged act of discrimination. Section 77(5)(b) provides that where reasonable cause can be shown the Director may extend the period in which the complainant may refer a complaint to the Tribunal.
Section 77(5) of the Acts provides as follows:
“(a) 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 cause 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”.
5.1.2 The respondent prior to the hearing submitted that the claim was out of time as the complaint form was submitted on the 24th of July, 2015 with the most recent date of discrimination cited on the form as being 23rd of March 2013 which would make the complaint well out of time in accordance with the time limits cited in the Act.
5.1.3 The time limits issue was brought to the attention of the complainant by the WRC on the 17th of August 2015 and the complainant clarified in writing on the 19th of August 2015 that the complaint form should have stated the 23rd of March, 2015 not 2013 as the most recent date of discrimination. The complainant’s submission in support of his complaint cites a number of events and allegations which relate to incidents which took place during his employment with the respondent which commenced on 13th of March, 2015 and which terminated on 3rd of September, 2015. I am satisfied from the evidence adduced that the date of most recent discrimination provided on the initial complaint form was a mistake and that this was corrected and clarified by the complainant once it was brought to his attention. I am satisfied that his complaint which should have stated 23rd of March, 2015 as the most recent date of discriminationis within the time limits for submitting a complaint.
6. Conclusions of the Equality Officer
6.1 The issues for decision by me now are 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 2015. I must also make a decision on whether the complainant was harassed contrary to section 14(A) of the Acts and victimised contrary to Section 74 (2). 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.
6.2 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)…..”
6.3 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… “
6.4 Thus the complainant must be the subject of less favourable treatment in comparison to another person on grounds of race. 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.
6.5 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”.
6.6 The complainant at the hearing stated that he is Irish. The respondent advised the hearing that the majority of its staff are also Irish. The complainant submits that he has been treated differently due to the fact that he speaks with a broad Dublin accent. In evaluating whether the complainant has a valid case under the race ground I must look to the definition of race as contained in the Employment Equality Acts, 1998 to 2015. 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… “
6.7 The complainant prior to the hearing submitted his complaint on the race ground stating that he was from Dublin and spoke with a ‘broad Dublin accent’. The complainant advised the hearing that this was due to the fact that he had lived in corporation housing from the age of 3 to the age of 8. The complainant at the hearing when questioned about the ground under which he took his complaint stated that he was not claiming that he was of a different race.
6.8 The complainant advised the hearing that the respondent had told him to ‘refine your accent’. This the complainant submits is his grounds for taking the complaint on the ground of race. The respondent advised the hearing that it had not told the complainant to refine his accent but that he had been asked not to use ‘an aggressive tone’ when dealing with other staff. This the respondent submits was said after a number of complaints were received from other staff members about the complainant’s aggressive tone and manner when dealing with them. The respondent advised the hearing that this was in no way related to the complainant’s accent and stated that the complainant had the same accent on the day he was interviewed and that he was appointed to the post following such interview. The respondent also gave evidence that a number of it’s staff including the complainant's daughter who was also employed by the respondent all spoke with the same accent and that no one was treated differently due to their accent. The complainant at the hearing did not provide any evidence to support his assertion that he was covered by the race ground in advancing his claims. I am thus satisfied that the complaint has failed to establish a prima facie case of discrimination on the ground of race. In addition I am satisfied that the complainant has failed to establish a prima facie case in respect of his claim of harassment on the ground of race.
7 Victimisation
7.1 The complainant has submitted that he was victimised by the respondent. A claim of victimisation under the acts does not require a ground and so I will examine the claim of victimisation separately.
7.2 Section 74(2) of the Employment Equality Acts, 1998-2011 defines victimisation as follows:
“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………….
(f) an employee having opposed by lawful means and act which is unlawful under this Act…….
(g) an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs”
7.3 In Tom Barrett v Department of Defence[1] the Labour Court set out the three components which must be present for a claim of victimisation under section 74(2) of the Acts to be made out. It stated that (i) the complainant must have taken action of a type referred to at paragraphs (a)-(g) of section 74(2) – what it terms a protected act, (ii) the complainant must be subjected to adverse treatment by his/her employer and (iii) the adverse treatment must be in reaction to the protected act having been taken by the complainant.
7.4 The respondent advised the hearing that the complainant had not at any stage during his employment made any complaint of discrimination to the respondent. It emerged at the hearing that the first time the complainant made any complaint of discrimination was in his complaint to the tribunal on the 24th of July, 2015. The complainant’s employment terminated on the 3rd of September. 2015 due to his submitting his resignation. The complainant had during this time been absent on sick leave from 25th of April, 2015 to 3rd of September, 2015.
7.5 The respondent advised the hearing that prior to the complainant going on sick leave he was called to a meeting on 23rd of April, 2015 due to two incidents which took place when he was on night duty on 22nd of April, 2015 and which had been reported to the Director of Nursing, by other staff members. The respondent advised the hearing that these issues involved allegations made by other staff that the complainant had told them that he had been ‘keeping a book’ and that he had told staff that he ‘had enough evidence to bring this place down’. The respondent stated that the second issue involved a report from a staff member that the complainant had left the premises without permission while on night duty to collect his daughter for work thus leaving the night staff short handed during his absence.
7.6 The respondent advised the hearing that these issues were raised with the complainant at a meeting on the 23rd of April, 2015. Witness for the respondent Ms. G advised the hearing that she had indicated to the complainant that these matters were to be passed to HR and Senior Management who would decide on disciplinary measures. It was agreed that Ms. G would meet with the complainant again the following Monday. On 23rd of April, 2015 HR wrote to the complainant asking him to attend a disciplinary meeting on 30th of April, 2015. The complainant did not return to work and so the disciplinary hearing did not take place. The complainant at the hearing did not adduce any evidence of adverse treatment by the respondent which followed a protected act.
7.7 Accordingly, I am satisfied from the totality of the evidence adduced in relation to this matter that the complainant has failed to establish a prima facie case of victimisation by the respondent in relation to these matters.
8. DECISION OF THE EQUALITY OFFICER
8.1 I have completed my investigation of this complaint and in accordance with section 79(6) of the Employment Equality Acts, 1998-2015 I issue the following decision. I find –
(i) that the complainant was not discriminated against by the respondent on grounds of race in terms of section 6(2) of the Employment Equality Acts, 1998 -2015 and contrary to section 8 of those Acts and was not harassed contrary to Section 14(A) in respect of the following
· being asked to refine his accent
· being asked to cover up his tattoos
· being phoned at home while off-duty
· a failure to appoint him as Lead Carer
· failing to give him a wage increase when others received an increase
(ii) that the complainant was not victimised by the respondent contrary to Section 74(2) of the Employment Equality Acts, 1998-2015
_____________________
Orla Jones
Adjudicator/Equality Officer
10th of August 2017
Footnotes
[1] EDA1017