DEC-E2017-088

EMPLOYMENT EQUALITY ACTS

DECISION NO. DEC-E2017-088

PARTIES

Stephen Mugiri

Complainant

AND

Google Ireland Ltd

(Lorna Lynch, BL instructed by A & L Goodbody Solicitors) Respondent      

File reference: ET-158134-EE-15

Date of issue:     21 December 2017  

1.         Introduction:

1.1       On the 14th July 2015, the complainant referred a complaint pursuant to the Employment Equality Acts regarding discrimination in his conditions of employment, access to training and his discriminatory dismissal. The complaint is made on the race ground. The complainant is a citizen of Kenya and a legal permanent resident of Canada. In accordance with powers under section 75 of the Employment Equality Acts, the Director delegated the case to me, Kevin Baneham, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts.  

1.2       The complaint was scheduled for hearing together on the 25th August 2016. The complainant attended the hearing. Lorna Lynch, BL instructed by A&L Goodbody Solicitors represented the respondent. Three witnesses attended for the respondent, referred to in this report as the Director, the HR business partner and the Appeal Manager.  

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

2.         Summary of the complainant’s evidence and submissions:

2.1       In written submissions, the complainant states that the respondent failed to carry out fair, unbiased or balanced assessments of his performance, giving examples of work that should have been assessed as “exceeds expectations” being rated as “meets expectations”. No assessment was made of high priority events, such as in business & headcount planning. They were successful events and received positive feedback. Moreover, the Director gave negative assessments out of line with other positive comments, reducing the complainant’s impact and effectiveness. The Director incorrectly assigned credit to others and used negative feedback to undermine the complainant’s leadership and effectiveness. He asserts that the respondent treated him in a discriminatory way.  

2.2       In respect of work assignments and work volume, the complainant asserts that he had a significantly greater volume and complexity of work as compared to others. His role was considerably different from the role he had been recruited for, and included areas outside his expertise. He complains of not being given support and that the onus was placed on him to seek support, contrary to policy. There was a failure to re-assign work from his heavy workload, in particular when compared to a named comparator. The termination of his employment was pre-determined and was signalled at the start of the Performance Expectations Plan as the outcome of this process. The appeal had not been fair as it could not revisit findings made by the Director. The appeal process did not follow policy. In the appeal minutes of the 22nd January 2015, the complainant raises how credit for the analyst day programme was given to another and how the disciplinary outcome letter had not addressed this complaint. He states that the executive immersion programme was not addressed at all. The complainant raises the three functions in his job description and his unfair workload. He raises the breach of confidentiality and his need for training and mentorship. The role he was recruited for was quantitative in nature, while his role he occupied was qualitative. He was not offered the training available to other employees. He raises the comparator whose role was narrowed to one function.  

2.3       In evidence, the complainant outlined that there were three elements to his complaint. The first was that he had been subject to unfair assessment, the second was the volume of the work assessments and third, the respondent’s failure to apply its own policies. In respect of the start of his employment, the complainant was recruited to a quantitative role to drive strategy. The respondent recruited him, as opposed to him applying for the role. He signed a contract of employment in late December 2013. The complainant said that when he joined the respondent, the structure changed where he now had three functions. This involved user advocacy, strategy and providing support to the Director. He was told that his probation was being extended and, in some ways, this was a surprise. The Director gave feedback on good and bad points. The complainant went into a Performance Expectations Plan. The real surprise came at the end of his probation when he was asked to attend a disciplinary process. He had significant issues with the grounds raised by the respondent, including where credit was assigned to colleagues.  

2.4       In respect of unfair assessments, the complainant said that the respondent had not carried out fair or unbiased assessments. It failed to allocate credit appropriately. He received 19/20 positive comments for a training event but only received a rating of “meets expectations”. He merited a higher rating. He scored “needs improvement” in a performance review process. Positive comments were made on his large or critical impact but the respondent document did not record them. He had been scored as “meets expectations” in a number of areas. This, however, was not included in the disciplinary process. In respect of the minimisation of his impact, the complainant said that the respondent had selectively picked out negative commentary. Credit had been given to others and while his role was acknowledged, he was awarded “meets expectations” or “needs improvement”. The respondent had excluded comments the complainant made to the Performance Expectations Plan (‘PEP’) and the performance review processes. He pointed out that while he had been given a critical impact rating in user advocacy, his overall rating was “needs improvement”. He had not replied to the performance review rating and did not know he could challenge the rating. He signed the document to acknowledge receipt and did not accept the “needs improvement” rating.  

2.5       In respect of work assignments, the complainant stated that his assignments were more complex than those of his colleagues. This was corroborated by his conversations with peers and with the Director. When coming out of the PEP in late November, he wanted his role reassessed so that his assignments were more appropriate to his skills. The respondent could not accommodate this and he was later dismissed. Others had been accommodated and he was aware of this through conversations with them. One colleague had a similar role but was given supports, i.e. three people reporting into her. The complainant had been personally responsible for everything and had no supports or people reporting into him. He was later given permission to hire someone, but had been expected to do the entire role without this support.

2.6       In respect of consistency of approach, the complainant said that the disciplinary process had been pre-determined, including when the Director informed him in late November that his contract was to be terminated. The Director said that it was not working out and the complainant asked when would his contract end. The Director said that this would be in late January. The complainant also spoke with the former HR business partner, who mentioned the PEP and the complainant leaving the respondent. This was a breach of confidentiality. The explanation provided by the respondent was not credible as the HR business partner was the lead in this case and not the former HR business partner. The HR business partner had been there from the start and the complainant asked how the former HR business partner became involved. The respondent had failed to apply its policies when it failed to carry out a fair assessment, in particular during the appeals process. At the start of the appeal, the HR business partner stated that the appeal would focus on new issues and would not review findings already made. It was not a full and fair appeal, and there had been no independent evaluation of his performance. The appeal could not remedy the unfairness of the assessments made of him. While he had not used the word “race”, the complainant had made it clear that his issue related to unfairness and bias and this amounted to discrimination. Discrimination was about outcomes and not necessarily about intent. He was treated differently to others, for example when compared to multiple comparators and peers. The respondent had not dealt with him in accordance with policy.  

2.7       In cross-examination, the complainant acknowledged that the comparator in Hyderabad had an additional TVC role and a global role with 600 vendors. He said that she had supports and was a true peer. Her role had changed and they started with the same functions. He accepted that this comparator had asked for her role to be changed and that she always had the TVC role. He said that the respondent had chosen to concentrate on this comparator but there were other comparators, for example a named colleague in a US office. It was put to the complainant that 80% of his role was strategy and management, with 20% being user advocacy; he agreed that this was what was on paper, but this was not the reality. He said that the Performance Expectations Plan had split his role into equal thirds. The complainant did not accept that the user role only took up a minority of his time. He stated that while his hire had been in the user role, this only occurred at the end of November. It was put to the complainant that after he left, the user role was re-assigned as an add-on; he replied that this was not a fair conclusion as there may have been a move away from user advocacy. The complainant said that he designed and delivered executive training and had done this on his own. It was put to the complainant that the feedback had been in relation to the programme as a whole; he replied that he had not been aware of such a distinction. It was put to the complainant that the job description required basic elements of performance in global and cross-department functions. It was put to the complainant that the Director supported him and had raised competency issues; he replied that he had appreciated his support. In respect of the document of the 22nd August 2014, the complainant said that he and the Director had discussed extending his probation and they designed the PEP together. He had thanked the Director for extending the probation. He understood that the PEP was a formal process and a document was used to track performance. The complainant accepted that the performance review process was separate. It was put to the complainant that he had accepted the “needs improvement’ rating; he replied that he did not know of any alternative. He had not challenged it at the time and did not know he could. The contents of the performance review process were put to the complainant and that he had been scored as “needs improvement”; the complainant replied that in the performance review document, he listed the work assigned to him and stated that his key focus was the PEP and the areas of high impact and function. He had misgivings about the PEP but focussed on addressing the issues, as opposed to kicking up a fuss. It was put to the complainant that he and the Director assessed his contribution differently with the Director viewing the complainant as a facilitator; he replied that he had conversations with others and that the management feedback was positive. It had been the Director and another manager who had scored the performance review process. The complainant said he had done well in the tasks assigned to him, but was rated in other areas. The minutes of the disciplinary minutes were put to the complainant, in particular the references to support from a colleague and confusion in the team; he replied that this was fair but business planning was not his forte. His strengths were in quantitative analysis and strategy. It was not surprising that he needed guidance. He had two conversations with this colleague, but this was only one person’s feedback and he pointed to other feedback. At this time, he concentrated on the PEP and the business planning element was added to his role at the time of the changeover, when he first joined the respondent. The complainant said that the assessments did not reflect the evidence and were inaccurate.  

2.8       The disciplinary outcome letter of the 18th December 2014, in particular the issue of business planning raised in the PEP, was put to the complainant; he said that this was a biased assessment and he had concluded the PEP. He was not sure why he had not responded to a high priority item regarding contributing globally. He commented that the PEP concluded on the 4th December and the disciplinary process commenced quickly afterwards on the 10th December. In respect of comments made regarding a named colleague, he said that this was based on an incorrect premise and that he had been the owner of the project. It was put to the complainant that the Director stood over his assessment relating to TVC; he replied that this was based on something incorrect and he did not have current access to the relevant records. He said that the reports he issued to senior management were correct. It was put to the complainant that the Director’s point was that they were not fed back to the relevant sections. He replied that the assignments had been the only basis for the PEP, but tasks were not assessed. This meant that no top level assessment had been made. It was put to the complainant that the disciplinary letter refers to both the top level and specific issues and that he had never said he was a great leader and strategist; he replied that there is evidence of him delivering on strategy and leadership, for example the executive programme. It was put to the complainant that the Director had a different assessment and that “the trees mattered as well as the forest.” He replied that while it was the Director’s role to assess him, this assessment had not reflected the facts. It was put to the complainant that there had been no pre-determination of the process; he replied that it had been pre-determined, because of his conversations with both the Director and the former HR business partner. It was put to the complainant that there had been an overlap where the former HR business partner remained involved for the first six months of the complainant’s time with the respondent; he acknowledged that he had requested to meet her, but it had been inappropriate for her to bring up the PEP. She told the complainant to prepare himself for a January departure and she has not denied saying this. It was put to the complainant that he had been given a full appeal and that the appeal was not a full rehearing; he did not agree and had tried to raise the executive immersion programme in the appeal, but the Appeal Manager said that it had already been addressed. He did not know what the Appeal Manager had meant in her reference to “limited adaptation”. It was put to the complainant that the appeal report addressed the executive immersion programme; he replied that there had been a deficiency in the assessment of feedback.  

2.9       In closing comments, the complainant said that discrimination was not just about intent, but was also about outcomes. He had been the only black person in a group of 200. He had been treated differently as he had been treated unfairly. It had been a biased disciplinary process. There had been 189 in the department reporting to the Director. Ambitious tasks had been set out in the Performance Expectations Plan in a field where he had no expertise. The feedback he was given was that he needed too much support, but his comparator had been accommodated. This was not about nationality, but about race.  

3.         Summary of the respondent’s evidence and submissions:

3.1       The Director gave evidence. He stated his level within the respondent and that he was responsible for trust and safety of the respondent’s service. He oversaw offices in Singapore, Tokyo and Dublin. The job of the department was to remove bad content and to develop policy and roles for product lines. Someone of the complainant’s level was expected to have global and strategic influence. At the time the complainant started, two of the roles split out and the user role was new to Dublin. There had been three elements to the complainant’s role. A named colleague had been hired for the user advocacy function in the US and the complainant was to do the role in Dublin. As this was a new role, reasonable expectations had been set. It was 20% of the complainant’s role, but 100% of the role of the US counterpart.  

3.2       The Director said that he and the complainant always had a lot of contact, and there were concerns that the complainant lacked the insight required for his level and that he did not understand his core work. There were issues with monthly metrics, in particular how Dublin contributed to the global picture and added value. While the complainant was able to collect data, he was not able to provide insights and to put it on the global stage. The Director provided support to the complainant in ramping up a named project. Five other managers of the complainant’s level reported to him, but the complainant required more support. The Director extended the complainant’s probation because of issues with the slow ramp-up and with competencies. He was struggling with concepts and with measurement. In respect of monthly overviews, the complainant was not getting to pitch well enough and on his own. The complainant thanked him for extending his probation.

3.3       The Performance Expectations Plan followed the extension of the probation and its purpose was to make improvement achievable. While there were still broader questions regarding the complainant, the PEP would establish whether he had the capabilities of the level of his role. In respect of the performance review, this was a process of self-assessment with comments from peers. There was space for positive and critical comments. He asked others to read the document as part of a calibration process. Staff at the complainant’s level were reviewed across functions globally. The complainant had always been in the “needs improvement” category and there was no question of him challenging this. The Director referred to a management colleague having to create a template for the complainant. While there had been improvement on his speed of execution, there remained questions over leadership. The Director had inserted the PEP comments just before the disciplinary meeting. One needed a “meets expectations” rating in critical areas. The executive immersion programme was not a new concept and was previously done by a person of the level below the complainant. While the complainant’s delivery had been good, it rated only as “meets expectations” for someone of his level. The Director had given the complainant lots of support on the piece of work that led to a positive comment from a named manager about the complainant seeing the big picture.  

3.4       The complainant was responsible for compiling a monthly overview, including collating EMEA information for a global report. Issues had arisen on three occasions with how Dublin was represented and a new document had to be circulated. Items had to be corrected. He wanted a person of the complainant’s level to be able to use this data to strategise. The disciplinary meeting was the first time the complainant questioned his “needs improvement” performance review rating. The Director received feedback from named senior managers as part of the PEP and they had known of the “needs improvement” rating. In respect of the comparator, her office was the centre of the function. Given the volume and complexity of her role, it was not comparable to the complainant’s, even if they were the same level. The Director said that there had been no pre-determination of the disciplinary process.  

3.5       In cross-examination, it was put to the Director that the issues he raised at the end of the PEP were not discussed during the process; he replied that he had made his assessment at the end of the process, but the principles were discussed all along. He had read all of the complainant’s inputs prior to making his assessment. It was put to the Director that the job specification for business organisation roles differed from those for technical roles; he replied that this related to engineering posts and this role was a business role. Referring to the job specification, it was put to the Director that the complainant had skills with large data sets; he replied that many staff of the complainant’s level had these skills. It was put to the Director that there was ambiguity in the job specification as to whether the role was business or technical; he replied that the role related to data analysis and was not a technical engineering role. The Director stated that his first interview with the complainant had been of a technical nature. He said that it had been agreed to use assignments as the core element of the Performance Expectations Plan. It was put to Director that the disciplinary outcome letter of the 18th December 2014 refers to items not included in the PEP and the comparator had said that her workload was too high. The Director stated that the complainant had not met the requirements of the PEP process. He accepted that the complainant had played a role in the PQO TGIF event.  

3.6       The Appeal Manager gave evidence. She was the Director of Sales and in early January 2015, she heard the complainant’s appeal. This was her third such appeal and it was standard to produce an investigation report. The meeting with the complainant lasted one hour and there was a limited scope to the appeal. She had sought to understand the specific grounds of the appeal and interviewed the Director and the comparator’s manager. She then issued the report to the complainant. In cross-examination, the Appeal Manager said that she had not upheld the complaint of a breach of confidentiality as the former HR advisor had been the business partner assigned to the Director and was over the Performance Expectations Plan process and the extension of his probation.  

3.7       The HR business partner said that the former HR business partner was his peer and as the department was now his client, she was still his informal mentor. While the former HR business partner had been aware of the PEP, he had worked with the Director on this process.  

3.8       The respondent submitted that the complainant had not established a prima facie case of discrimination either in his own evidence or having heard the evidence of the respondent witnesses. The complainant had not mentioned the issue of race in the disciplinary process. The complainant’s reliance on procedural evidence was akin to a claim made pursuant to the Unfair Dismissals Act. The respondent answered those procedural issues and this case is not an examination of process. The complainant had not established that his treatment and that of the comparator was linked to race. If it was held that a prima facie case of discrimination had been established, this had been a standard, transparent and exhaustive process. The complainant had been supported and had access to HR. The issue of competencies, in particular leadership, had been raised from the start. The complainant could not suggest that he excelled in any area. No inference of discrimination could be drawn from the Performance Expectations Plan process. While the complainant had rated as “meets expectations” in some areas, he rated “needs improvement” on the big-ticket items. This could not be balanced out. There had been no pre-determination of the process. The appeal had been an independent and exhaustive evaluation. The respondent stated that there were 26 nationalities employed in the department and one colleague was black. This was the complainant’s hire.  

4.         Findings and conclusions

4.1       The complainant commenced employment with the respondent on the 3rd March 2014 and was dismissed on grounds of performance on the 18th December 2014, his last day in the workplace. The complainant was placed on Garden Leave and the notice period ended on the 15th January 2015. He participated in an appeal process after that date, which culminated in the appeal investigation report of the 4th February 2015. This confirmed the complainant’s dismissal on grounds of performance. The complainant’s résumé details 15 years of working with clients on information tools and leading large analytical and technology teams. The respondent recruited the complainant and this process involved an interview conducted by the Director. The complainant is a Kenyan citizen and lives in Canada. He and his family relocated to Ireland for the purpose of taking up this role. The complainant’s contract of employment of the 11th February 2014 provided that the complainant was employed as a Senior Business Analyst in Product Quality Operations and reported to the Director. The job specification refers to being a big-picture thinker and strategic leader.The role was that of a Level 6 and the respondent provides a scheme of the attributes expected of such a role as well as of higher roles. By letter of the 25th August 2014, the complainant’s probation was extended. He engaged in a Performance Expectations Plan, dated the 22nd August 2014, which covered focus areas identified by him and the Director. In Q3 2014, the complainant also engaged in a performance review process, involving input from his line manager, other senior managers and peers, where he was rated “needs improvement”. This is the lowest of five possible outcomes to a performance review. This was the only review process involving the complainant in his time with the respondent.  

4.2       The complainant asserts that he was treated differently to others and not in accordance with respondent policy. He states that his performance was assessed unfairly, leading to a flawed disciplinary process and his subsequent dismissal. He further asserts that this was because of his race. Section 85A of the Employment Equality Acts sets out the burden of proof in relation to complaints of discrimination. It requires the complainant to prove the primary facts upon which they rely on in seeking to raise an inference of discrimination. If the complainant can establish the necessary facts, and where they are of such significance to raise the presumption of discrimination, the burden of proof then falls to the respondent.  

4.3       In Citibank v Ntoko (2004) 15 E.L.R. 116, the Labour Court summarised the approach in assessing claims of race discrimination as follows:            

“This approach is based on the empiricism that a person who discriminates unlawfully will rarely do so overtly and will not leave evidence of the discrimination within the complainant’s power of procurement. Hence, the normal   rules of evidence must be adapted in such cases so as to avoid the protection of anti-discrimination laws being rendered nugatory by obliging complainants to prove something which is beyond their reach and which may only be in the respondents capacity of proof. Support for this approach can be found in the speech of Lord Browne-Wilkinson in Glasgow City Council -v- Zafar at p. 958, in which he quoted with approval the guidance given to Employment Tribunals by Neill L J in King v Great Britain China Centre [1992] I.C.R. 516, as follows: 'From these several authorities it is possible, I think, to extract the following principles and guidance.

1. It is for the applicant who complains of racial discrimination to make out his or her case. Thus if the applicant does not prove the case on the balance of probabilities he or she will fail.                       

2. It is important to bear in mind that it is unusual to find direct evidence of racial discrimination. Few employers will be prepared to admit such discrimination even to themselves. In some cases the discrimination will not be ill-intentioned but merely based on an assumption that "he or she would not have fitted in."                        

3. The outcome of the case will therefore usually depend on what inferences it is proper to draw from the primary facts found by the tribunal. These inferences can include, in appropriate cases, any inferences that it is just and equitable to draw in accordance with section 65(2)(b) of the Act of 1976 from an evasive or equivocal reply to a questionnaire.                        

4. Though there will be some cases where, for example, the non-selection of the applicant for a post or for promotion is clearly not on racial grounds, a finding of discrimination and a finding of a difference in race will often point to the possibility of racial discrimination. In such circumstances the tribunal will look to the employer for an explanation. If no explanation is then put forward or if the tribunal considers the explanation to be inadequate or unsatisfactory it will be legitimate for the tribunal to infer that the discrimination was on racial grounds. This is not a matter of law but, as May L.J. put it in North West Thames Regional Health Authority v. Noone ([1988] ICR 813 at 822), "almost common sense."                        

5. It is unnecessary and unhelpful to introduce the concept of a shifting evidential burden of proof. At the conclusion of all the evidence the tribunal should make findings as to the primary facts and draw such inferences as they consider proper from those facts. They should then reach a conclusion on the balance of probabilities, bearing in mind the difficulties which face a person who complains of unlawful discrimination and the fact that it is for the complainant to prove his or her case.'”  

4.4       As opened by the respondent, the Labour Court when addressing the issue of the burden of proof in Valpeters vMelbury Developments Ltd [2010] E.L.R. 64, held, at page 68, as follows:            

“Section 85A of the Act provides 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. 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 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 establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.” 

4.5       Applying section 85A and these precedents to the facts of this case, I make the following findings and comments. Central to the claim is the complainant’s assertion is that he was treated differently to others and not in accordance with the respondent’s policies. He ties this into race by saying that at the time of his dismissal, he was (until recently) the only black person on the PQO team, and the other black person had been his recent hire. The first question to be determined whether this is a fact of such significance as to raise a prima facie case of discrimination. In assessing this question, it is necessary to look at the facts in their totality. I note the circumstances of the complainant’s recruitment. He was recruited by the respondent and interviewed by the Director. One of the three parts of his role was support of the Director. There was also significant interaction between the complainant and the Director before and during the PEP process. I note that there was no changing of the guard. The senior manager who extended the complainant’s probation and instigated the disciplinary process was the same manager who recruited him. This was not a case of a senior manager taking over a position and reviewing who their reports were, including whether they “fitted in” (as per King v Great Britain China Centre).  

4.6       I note that a great deal of this case revolves around how the Director assessed the complainant’s contribution. It is undoubtedly t case that the complainant contributed while working for the respondent. This is evident by the positive comments made by colleagues in the performance review process. They refer to the complainant as having adapted quickly to the respondent (for example, “I find it hard to believe that he hasn’t been around for longer”). Against this, there are less positive comments. They include comments regarding his speed of adaptation to the respondent work culture (from one contributor, “I think Steve (like all of us) has found the move to Google to be a challenging one” and “[O]ne aspect that I think Steve is still getting to grips with is the pace at which we work”). There is apparently contradictory criticism where one senior manager said the complainant should “ask/check in more frequently” but she is recorded as criticising the complainant for requiring “detailed guidance/instruction” in the Business & Headcount Planning element of the PEP. A peer warns that the complainant should be “more mindful of audience needs” regarding a presentation made by the complainant; the complainant replies that he had asked this colleague to act as a “dogfood test” of the presentation’s content. The complainant states that this colleague later rated the presentation as “4/5”. Moreover, the complainant places emphasis on how he was treated in terms of his work functions, in contrast to the comparator in Hyderabad who had duties lifted from her. The respondent, in particular the Appeal Manager, ascribed this to the global nature of the comparator’s role in a particular function. Given that this is presented to the complainant in the 4th February 2015 investigation report, he cannot be said to have had the chance to contradict the comments made by the comparator’s manager about the comparator’s role.  

4.7       On the other side, I note that much of this case rests on the Director’s assessment of the contribution made by the complainant, not only as to what he delivered, but also what was expected of a manager of the complainant’s level. This related in particular to the “big-ticket” items identified by the Director in evidence. I note that in his assessment of the complainant, the Director acknowledged that the complainant contributed “good seeds” and “good nuggets”. I note that in the dismissal letter of the 18th December 2014, the respondent refers to the complainant not meeting expectations in terms of adding strategic insights to drive change and that he had been more of “a middleman” and had caused confusion by not having clear communication and ability to influence. On hearing the appeal, the Appeal Manager viewed that much depended on the Director’s assessment of the value added by the complainant. This was relevant, for example, whether an intervention was “meets expectations” or should be given a higher rating. It was also relevant in deciding whether the complainant merited “needs improvement” or “meets expectations” on particular tasks. I note that the Director corrected a particularly damaging finding that the complainant had relied on a peer to generate ideas in the section “Understanding the big PQO picture”. I note that the Director was uniquely placed to assess the contribution of the complainant, as a level 6, taking account of his own interaction with the complainant and the feedback of peers and senior managers.  

4.8       There may be circumstances in which being both the only person of one particular discriminatory ground (race, sexual orientation etc) and the person who is dismissed are facts of such significance to raise a prima facie case of discrimination. This does not arise in this case. Whether such a prima facie case has been established requires looking at the evidence as a whole. In making this assessment, I note that the Director was the hiring manager, when he was aware of the complainant’s race. He later invoked the disciplinary process on performance grounds. I note the Director’s vantage point in assessing the complainant’s impact as a Senior Business Analyst. While there were many positive comments of the complainant’s role, there were other, less positive comments, for example, relating to global or high-level impact. I also note the complainant’s evidence. He says the role had changed by the time he started with the respondent. He states that he was more quantitative than qualitative in focus.  

4.9       I appreciate that the complainant relocated his family to Ireland for this role and returned to advance his case at hearing. It is acknowledged that he contributed to the respondent and was a person of integrity. The respondent, however, made a decision that performance issues merited his dismissal. The purview of my role is to determine whether a case of discrimination has been made out. For the reasons outlined above, I find that the complainant has not made out a prima facie case of discrimination. The facts of, on one hand, being dismissed and how he was treated, and, on the other hand, his race, are not facts of such significance to establish a prima facie case of discrimination. The respondent raised performance issues, dealt with via a process. While there was, inevitably, a degree of subjective analysis regarding performance, I note that the Director had been the hiring manager and the other, corroborative, evidence. I have regard to the complainant’s own evidence that he was more quantitative than qualitative in focus. Taking these factors together, I conclude that the complainant has not made out a prima facie case of discrimination on grounds of race.  

5.         Decision:

5.1       In accordance with section 79 of the Employment Equality Acts, I conclude the investigation and hold that the complainant has not established facts upon which it can be presumed that he was subjected to discriminatory treatment on grounds of race.

 ____________________________________

Kevin Baneham

Adjudication Officer / Equality Officer 

21st December 2017