EMPLOYMENT EQUALITY ACTS 1998-2015
Decision DEC – E2017 – 064
PARTIES
Mr Henry Ekpemandu
and
IBM Ireland Product Distribution Ltd. (represented by A&L Goodbody, Solicitors)
File Reference: et-156258-ee-15
Date of Issue: 24th August 2017
Keywords: time limits – S. 77(5) – extension of time – participation in internal investigation reason for extending – race – discrimination – hypothetical comparator - Citibank v. Massinde Ntoko [EED045] – victimisation – data protection complaints not within jurisdiction of the Commission.
1. Claim
1.1. The case concerns a claim by Mr Henry Ekpemandu that IBM Ireland Product Distribution Ltd discriminated against him on the ground of race contrary to Section 6(2)(h) of the Employment Equality Acts 1998 to 2011, in terms of access to promotion. The complainant also complains of victimisation contrary to S. 74(2) of the Acts.
1.2. The complainant referred a complaint under the Employment Equality Acts 1998 to 2011 to the Director of the Equality Tribunal on 11 May 2015. A submission was received from the complainant on 15 November 2016. A submission was received from the respondent on 16 January 2017. On 23 May 2017, in accordance with his powers under S. 75 of the Acts, the Director General delegated the case to me, Stephen Bonnlander, an Equality Officer/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. As required by Section 79(1) of the Acts and as part of my investigation, I proceeded to hold a joint hearing of the case on 12 July 2017. Additional evidence was requested from the respondent on 10 July 2017 and received on 11 July 2017. The complainant was given an opportunity to give observations on case law introduced late in the proceedings by the respondent. He did not avail of this opportunity. Instead, he attempted to challenge witness statements from the hearing, and to introduce unrequested additional evidence in his observations. In line with the principles of fair proceedings and natural justice, this was not acceptable, and accordingly I did not accept these submissions. These observations were received on 21 August 2017.
2. Summary of the Complainant’s Written Submission
2.1. The complainant gives his race as black African, and states that by the time he filed his complaint, he had worked for the respondent for eight years.
2.2. The complainant submits that starting from December 2013 and continuing through to December 2014, his line managers requested him to produce hospital appointment letters for his family members when he wished to avail of annual leave for attending these. According to the complainant’s submission, this practice ended in December 2014 following an internal complaint he made. The last such incident, according to his submission, occurred in October 2014. He further states that no force majeure leave was ever granted to him in respect of the health issues in his family until he made his complaint. He states that he was the only person on his team who was singled out with this requirement, and also that on occasion he was forced to take an entire day’s leave for only a short absence.
2.3. Further on the subject of discrimination, the complainant makes generalised allegations of being poorly treated within his team, along with another non-white colleague. He submits that this poor treatment took the form of “victimisation, mild bullying, intimidation and unnecessary persecution veiled in the form of a draconian micro-management”. Apart from a chat protocol in which his non-white colleague shares these views, the complainant does not provide any details of incidents. The general gist of his submission is that his native Irish colleagues found it easier to build relationships with Irish first line managers and that he experienced a degree of exclusion from these group dynamics.
2.4. The complainant further alleges that when he received a performance rating of certain standard, he was put on a Performance Improvement Plan (PIP), with targets which he alleges were impossible to achieve, whereas an Irish colleague with the same rating was not put on a performance improvement plan.
2.5. He also states that his Irish colleagues achieved promotion. Four out of a team of 30 did not, and three of these, including the complainant, were non-white. These promotions took place between 2011 and 2014. The complainant does not provide any further details on these.
2.6. The complainant takes considerable issue with the findings of an investigation which the respondent carried out into these matters, which in his view amounts to a “whitewash”. In particular, a finding was made that the practice of demanding the hospital appointment letters from the complainant commenced only in August 2014, which the complainant disputes.
2.7. The complainant also raises the point that the copies of the hospital appointment letters were not returned to him and his family, which he submits constitutes victimisation, along with the outcome of the investigation into his complaints.
2.8. On the other hand, the complainant notes in an internal appeal document which is attached in evidence to his submission that his treatment by the respondent, in terms of his family situation, improved once he had lodged his grievance. This would not much support a contention of victimisation.
3. Summary of the Respondent’s Written Submission
3.1. The respondent denies discriminating the complainant as alleged or at all. As a preliminary point, it submits that any alleged incident which occurred prior to 8 December 2014 is outside the statutory time limit set out in S. 77(5) of the Acts and therefore statute-barred.
3.2. As regards the complainant’s other allegations, the respondent submits that these were exhaustively investigated in the course of its internal grievance and appeals processes, and that at no time did the complainant provide any evidence for discriminatory or victimisatory treatment. With regard to the request to the complainant to provide letters of hospital appointments to have requests for time off approved, the respondent submits that this was stopped once the investigator had become satisfied that this was inappropriate. The respondent submits that these requests by the complainant’s first line manager arose out of the manager’s frustration about the complainant’s frequent requests for time off. It denies any racial connection. The investigation reports were submitted by the respondent as part of its evidence.
3.3. In particular, it argues that the complainant’s failure to achieve promotion had to do with his middling performance, and it expresses concern about the chat protocol mentioned above.
3.4. Overall, the respondent submits that the complainant’s allegations do not amount to a prima facie case of discrimination on the ground of race and that his complaint should fail.
4. Conclusions of the Equality Officer
4.1. The issue for decision in this case is whether the complainant was discriminatorily dismissed within the meaning 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 S. 85A of the Acts. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of “sufficient significance” before a prima facie case is established and the burden of proof shifts to the respondent.
4.3. In coming to my decision, I have considered all oral and written evidence presented to me by the parties at the appropriate point in the proceedings.
4.4. Time limits: It was the respondent’s position that the time limit ought to be 8 December 2014. I pointed out to the respondent that since the complaint was date stamped 11 May 2015 in the then Equality Tribunal, this would make the six month time limit the 11 December 2014. In light of the fact that the complainant is unrepresented, and that the respondent has been long aware of the complainant’s grievances and is therefore not prejudiced, and so as not to limit the complainant’s access to justice on a technicality, I then gave the complainant an opportunity to apply for an extension to 12 months pursuant to the provisions of S. 77(5) of the Acts. The reason which the complainant provided, and which I accept, is his participation in the respondent’s internal grievance mechanisms, which delayed the making of a formal complaint.
4.5. I pointed out to the complainant, however, that even with such an extension granted, nothing before 11 May 2014 could be considered. This refers to some specific events enumerated by the complainant, as well as his relationship with his former first line manager, which came to an end in April 2014 and which he considered to be discriminatory.
4.6. I also stated to the complainant that I had no jurisdiction on what he viewed as privacy violations, in terms of being asked to provide hospital appointment letters to get time off to accompany his daughter to treatments. Such a complaint would be a matter for the Data Protection Commissioner. Insofar as such an action might be discriminatory, it is for the complainant to show that someone else of a different race or nationality was treated differently, or would not be treated as the complainant was treated. The complainant did not have documentary evidence with him for such a proof, nor did he have witnesses.
4.7. With regard to this particular point, I wish to note that when I wrote to both parties with the notification of the hearing date, I asked them to provide me with the names of people in their party on the day. I subsequently received correspondence from the complainant in which he confirmed that he would attend by himself. He did not mention any witnesses.
4.8. When I brought up his lack of witnesses at the hearing, however, he alluded to the existence of several witnesses. He said that one named witness was out sick after surgery. He suggested I contact five other witnesses by telephone. I explained to the complainant that if his witness was unavailable, it was up to him to apply for an adjournment, and also that the respondent needs to be able to test the evidence of his witnesses and that therefore his envisaged method of me taking their evidence was contrary to fair procedures.
4.9. Overall, I formed a strong impression that the matter of witnesses only entered the complainant’s mind when I mentioned to him. In those circumstances, I refused to adjourn the hearing as the proper preparation of both written and witness evidence they wish to adduce, is the responsibility of each individual complainant, whether they choose to have professional assistance for doing so or not.
4.10. In terms of his complaint of being discriminated in access to promotion, the complainant stated, as he did in his written submission, that all but three people in his team were promoted to a higher band, and that of those not promoted, two, including him, were not white. The respondent’s HR director clarified that within the respondent organisation, staff get promoted in place to a higher band, on recommendation of their manager, if their performance and team contribution are consistently excellent. They do not get promoted to a different position. The complainant’s performance over the years had been quite middling. The complainant adduced no evidence that a colleague of a different nationality or skin colour with a performance record like his had been able to achieve promotion. In fact, beyond the generalised statement quoted above the complainant provided no evidence at all. Accordingly, he has not established a prima facie case and this part of his complaint must fail.
4.11. The complainant also raised the point that he was only granted force majeure leave for family circumstances once he had raised his grievance. He stated in evidence that he had wrongly believed that force majeure leave was at the discretion of the respondent, and that only after he talked to colleagues about it did he realise such leave was his statutory right. I find it impossible to see how this mistaken belief about his entitlements on the part of the complainant is in any way the responsibility of the respondent, or what it has to do with the complainant’s race. I am also satisfied that once the complainant applied for force majeure leave, the respondent facilitated him to the maximum of his statutory entitlements. Accordingly, I am satisfied that this detail cannot form part of any prima facie case of discrimination, in the complainant’s terms and conditions of employment.
4.12. With regard to his contention that no other worker on his team was asked to produce hospital appointment letters for vacation time off, I note that again, the complainant was not able to cite a comparator in similar need of short-notice vacation time for an illness in the family. However, by the evidence of his first line manager, it was indeed the case that nobody else on the team had a comparable family situation. One employee of colour was facilitated with unpaid carer’s leave in two lengthy blocks to care for her ailing parents, which was pre-approved by the respondent. Whilst this fact goes somewhat against the complainant’s generalised contention that non-white workers were at a disadvantage in the respondent organisation, it is also true that it is not quite an equivalent situation.
4.13. Given that the complainant’s family situation therefore made him something of a category of one within his team, it seems reasonable to afford him a hypothetical comparator in line with the principles established
Labour Court decision of Citibank v. Massinde Ntoko [EED045] and to ask whether someone of a different race or nationality would have been treated in the same manner. In this context the evidence of the complainant’s first line manager, that the complainant had a long history of poor timekeeping and poor time management, is of some importance. According to Mr K., the complainant very often requested time off at very short notice or with no notice at all, and Mr K. needed to do business planning for the team. The complainant also had a long history, confirmed by Mr K. and outlined in various internal investigation reports, of being late for work. Mr K. highlighted that the complainant had already been facilitated with special attendance hours to facilitate his family obligations.
4.14. The complainant did not dispute any of this except to say that he felt the respondent was ungenerous for counting starts of more than ten minutes after the agreed start time as being late. He also raised logistical difficulties in terms of navigating the respondent’s campus. However, apart from that many timekeeping systems in other organisations are significantly less generous than the respondent’s for clocking staff lates, I am satisfied that these systems are the same for all of the respondent’s employees and that meeting these requirements is one of the complainant’s obligations in connection with his employment.
4.15. There was no evidence adduced at all to suggest that an employee of a different race, with a timekeeping history like the complainant’s, and similarly going back for years, would have been treated differently. Once the complainant raised a grievance about having to provide the appointment letters, the practice was ended following an internal investigation. However, there is nothing to suggest that the distrust which the complainant’s manager had developed about the complainant’s frequent requests for time off was connected to the complainant’s race. Whilst the manager’s actions were wrong, as confirmed by the respondent’s internal investigation, I am satisfied that a gradual erosion of trust rather than racist discrimination was the root cause for these misguided requests.
4.16. With regard to the complainant’s complaint of victimisation, it is the complainant’s case that the fact that the respondent held on to the hospital appointment letters which the complainant submitted violated his family’s privacy and that these should have been returned to him. The complainant’s manager stated in evidence that he only requested sight of those, whereas the complainant stated that he was requested to submit copies. The complainant submitted printouts of emails in evidence from which it is apparent that scans of those letters were appended electronically. From this evidence, I am satisfied on the balance of probabilities that electronic copies, of at least some of the hospital appointments for the complainant’s daughter are stored or archived on the respondent’s systems.
4.17. On the other hand, S. 74(2) of the Acts defines “victimisation” as “dismissal or other adverse treatment of an employee” in response to having made a complaint of discrimination. I am satisfied that the complainant did indeed make a complaint of discrimination as part of his grievance, which was investigated by his second-line manager, Mr. B. On the other hand, there is no evidence before me to suggest that the respondent used the information in question in any way against the complainant, or that the respondent actually violated the complainant’s privacy or that of his family in any way. In fact, the complainant himself stated in evidence that relations between him and the respondent had developed in a very positive way since he filed his complaint with the commission and that “things were going in the right direction”.
4.18. The complainant also claimed in his written submission, referenced above, that the reports of the respondent’s internal investigations amounted to a “whitewash”. Both reports were appended to the complainant’s submission in evidence. Having read them carefully, I am satisfied that the investigations were first carried out and then reported on carefully and professionally by the relevant staff members, that they upheld the complainant’s main grievance, and that they cannot be said in any way to amount to a “whitewash”. I find this important to note because such an allegation represents to some extent an attack on the professional integrity of the relevant staff, and in the case on hand, this was not warranted. Also, for all of the reasons given in this and the preceding paragraphs, the complainant’s complaint of victimisation cannot succeed.
4.19. However, with a view of assisting the parties in further re-establishing trust between them and repairing their relationship, I would recommend that the respondent do a trawl of paper and electronic documents in the presence of the complainant, and either delete or hand back to the complainant, as the case may be, any copies of those hospital appointment letters which may still be in the respondent’s possession at this point in time.
5. Decision
5.1. This decision is issued by me following the establishment of the Workplace Relations Commission 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.
5.2. Based on all of the foregoing, I find, pursuant to S. 79(6) of the Employment Equality Acts 1998-2015 that the respondent did not discriminate against the complainant on the ground of race, contrary to S. 8 of the Employment Equality Acts, and did not victimise the complainant contrary to S. 74(2) of the Acts.
______________________
Stephen Bonnlander
Equality Officer
24 August 2017