DEC-S2017-003

EQUALITY OFFICER'S DECISION NO: DEC-S2017-003

PARTIES

Najwan Elmagboul

(Represented by Meehan Moroney Solicitors)

Vs

Limerick College of Further Education

(Represented by David O’Regan, B.L. instructed by Leahy and Partners Solicitors)

FILE NO: ES/2014/0094

DATE OF ISSUE: 24th of January, 2017

1. Dispute

This dispute involves a claim by the complainant against the respondent that she was discriminated against on the ground of race, in terms of Section 3 and, contrary to Section 7 of the Equal Status Act, 2000-2015. There is also a claim of harassment and of victimisation.

2. Background

2.1 The complainant referred a complaint against the above respondent under the Equal Status Act, 2000-2015 to the Equality Tribunal on the 27th of May 2014.

2.2 In accordance with his powers under section 75 of the Employment Equality Acts, 1998-2015 and under the Equal Status Acts, 2000-2015, the Director delegated the case on the 9th of September, 2016 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 III of the Equal Status Acts, 2000-2015. This is the date I commenced my investigation. Written submissions were received from both parties. As required by Section 25(1) and as part of my investigation, I proceeded to a Hearing on the 3rd of November, 2016.

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 84 of the Workplace Relations Act 2015.

3. Summary of complainant’s case

3.1 It is submitted that

the complainant attended the Administration office of the respondent on the 5th of February, 2014 to inquire about enrolling in an evening course in Digital Marketing and Social Media

Ms. K of PAUL Partnership had previously sent an email to the respondent on the 4th of February, 2016 enquiring as to whether the complainant could join this course, eventhough it had already started,

Ms. K had advised the complainant that she had not received a reply to this email and so the complainant went to the respondent’s Administration office to make an enquiry in person,

the complainant was already a student of the respondent at the time and was studying for a Graduate Diploma in Management,

while the complainant stood in line outside of the Admissions Office, Mr. A called to her from inside the office and asked her “What do you want?” despite the fact that the complainant was not next in line,

upon entering the office the complainant explained about the email sent by PAUL Partnership, which Mr. A told her he had not received,

Mr. A asked the complainant if she had registered for the course and upon learning that she had not he told her that she was “not going to attend any lecture” unless she had registered and paid the fees,

the complainant tried to explain about the email again and Mr. A repeated that she was not attending any lectures unless she paid the fees,

the complainant submits that there were a number of people in the queue who heard this conversation and that she felt humiliated and intimidated by the way in which Mr. A had ‘picked on her’,

it is submitted that the conduct of Mr. A amounts to discrimination on the ground of race in respect of access to a course provided by the respondent,

the complainant went home and posted a message on the respondent’s Facebook homepage stating that what “she experienced today was racism”,

the matter was investigated by the respondent who found no evidence of racism but stated that the complainant could have been dealt with in a more ‘customer friendly manner’.

4. Summary of respondent’s case

4.1 It is submitted that

the complainant attended the administration office of the respondent on the 5th of February, 2014 where she waited in line outside the door to the office of Adult Education,

upon seeing the complainant in the queue Mr. A enquired as to what she wanted,

the complainant advised Mr. A that she was interested in attending a course which had already commenced,

Mr. A enquired as to whether she had paid the fees for this course and advised her that unless she had registered and paid the fees she could not attend the course,

Mr. A was at this stage unaware of any email being sent by PAUL Partnership on behalf of the complainant and advised the complainant that the policy is that fees must be paid prior to attending a course,

the course in question had at that stage been running for a number of weeks,

the respondent replied to the complainant’s post on Facebook,

the respondent then received a letter from the complainant’s solicitor on 19th of February, 2014 referring to the night of the 5th of February and making allegations of discrimination on grounds of race following which there was a series of correspondence between the complainant and respondent.

5. Preliminary Issue – Time Limits

5.1 The complainant in respect of this complaint has raised issues which she alleges took place during February 2014. The complaint was submitted to the Tribunal on the 27th of May 2014 which was in compliance with the statutory time limits for referral of a complaint under the Acts.

5.2 Section 21(2)(a) of the Acts provides that before seeking redress under the Acts, a complainant shall “…within 2 months after the prohibited conduct is alleged to have occurred, or, where more than one incident of prohibited conduct is alleged to have occurred, within 2 months after the last such occurrence”, notify the respondent in writing of the nature of the allegations and of the complainant’s intention, if not satisfied with the response, to seek redress under the Acts.

Section (3)(a) provides that this 2 month period may be extended for reasonable cause up to a period of four months or exceptionally, the notification requirement may be dispensed with where fair and reasonable.

5.3 An application was made by the complainant for an extension of the time period for notification. This application was refused by the Equality Tribunal and a decision issued in this regard DIR-S2014-006 on 24th of November, 2014. This decision was later appealed to the Circuit Court in accordance with Section 21(7A) of the Acts. The Circuit Court overturned the decision of the Tribunal in this regard and an order was made to extend the time period for notification. Consequently the complaint was returned to the Tribunal to proceed by investigation and decision.

6. Findings and Conclusions of the Equality Officer

6.1 The issues for decision by me are, whether or not, the respondent discriminated against the complainant, on grounds of race , in terms of Section 3 and, contrary to Section 7 of the Equal Status Act, 2000-2015. There is also a claim of harassment and of victimisation. 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 Discrimination

Section 3 (1) and (2) of the Equal Status Acts, 2000-2015 set out the definition of discrimination as follows;

“3. (1) For the purposes of this Act, discrimination shall be taken to occur where—

(a) on any of the grounds specified in subsection (2) (in this Act referred to as “the discriminatory grounds”) which exists at present or previously existed but no longer exists or may exist in the future, or which is imputed to the person concerned, a person is treated less favourably than another person is, has been or would be treated,

(b) (i) a person who is associated with another person is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated, and

(ii) similar treatment of that person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination,

or

(c) (i) a person is in a category of persons who share a common characteristic by reason of which discrimination may, by virtue of paragraph (a), occur in respect of those persons,

(ii) The person is obliged by the provider of a service (within the meaning of section 4 (6)) to comply with a condition (whether in the nature of a requirement, practice or otherwise) but is unable to do so,

(iii) substantially more people outside the category than within it are able to comply with the condition, and

(iv) the obligation to comply with the condition cannot be justified as being reasonable in all the circumstances of the case.

(2) As between any two persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are:

(h) that they are of a different race colour nationality or ethnic or national origins (the “ground of race”),

6.3 Harassment

Section 11(5) of the Equal Status Acts, 2000-2015 sets out the definition of harassment as follows;

“Harassment takes place where a person subjects another person (“the victim”) to any unwelcome act, request or conduct, including spoken words, gestures or the production, display or circulation of written words, pictures or other material, which in respect of the victim is based on any discriminatory ground and which could reasonably be regarded as offensive, humiliating or intimidating to him or her.”

6.4 Victimisation

Section 3(2)(j) of the Equal Status Acts 2000-2015 sets out the definition of victimisation as follows:

that one—

(i) has in good faith applied for any determination or redress provided for in Part II or III,

(ii) has attended as a witness before the Authority, the Director or a court in connection with any inquiry or proceedings under this Act,

(iii) has given evidence in any criminal proceedings under this Act,

(iv) has opposed by lawful means an act which is unlawful under this Act, or

(v) has given notice of an intention to take any of the actions specified in subparagraphs (i) to (iv), and the other has not (the “victimisation ground”).

6.5 Section 38A (1) provides that the burden of proof is: " Where in any proceedings facts are established by or on behalf of a person from which it may be presumed that prohibited conduct has occurred in relation to him or her, it is for the respondent to prove the contrary." It requires the complainant to establish, in the first instance, facts upon which he/she can rely in asserting that the prohibited conduct has occurred. Therefore the complainant must first establish a prima facie case of discriminatory treatment and it is only when a prima facie case has been established that the burden of proof shifts to the respondent to rebut the presumption of discrimination.

6.6 Allegations of Discriminatory treatment, Harassment and Victimisation

6.6.1 The complainant advised the hearing that she had met with Ms. K of Paul Partnership on the 4th of February, 2016. She told the hearing that Ms. K had sent an email to the respondent on behalf of the complainant, enquiring about enrolling in an evening course in Digital Marketing and Social Media which had commenced in January. The complainant told the hearing that she decided to go to the respondent’s admissions office in person to follow up on this email on the 5th of February, 2014 as Ms. K had not yet received any reply to her email.

6.6.2 The complainant advised the hearing that she went to the respondent’s Admissions Office on the night of 5th of February about 6.45 p.m. and stood in line outside the office behind another person. The complainant told the hearing that she could see into the office and that Mr. A was talking to a student. The complainant stated that Mr. A, once he finished his conversation with the student, directed his attention to the queue outside the door. The complainant stated that Mr. A ignored the person in front of the complainant in the queue but directed his attention to the complainant and asked her ‘What do you want’. The complainant stated that she did not understand why she was allowed to skip the queue and why the person in front of her was ignored but stated that she concluded that the reason Mr. A directed his attention to her was that the minute he saw her, her “black skin irritated him,” and made him so angry it prompted him to shout ‘what do you want’, the complainant submits that she was permitted to skip the queue as her presence in the queue and her skin colour annoyed Mr. A so much.

6.6.3 The respondent at the hearing agreed that the complainant attended the administration office of the respondent on the 5th of February, 2014 where she waited in line outside the door to the office of Mr. A Director of Adult Education. Witness for the respondent Mr. A advised the hearing that he had been dealing with a number of queries from different people at the time. Mr. A stated that he saw the complainant in line outside the office and that she was queuing behind a teacher. Mr. A stated that he knew the teacher was waiting to discuss assessment material which had to be checked by Mr. A and that he knew it would take a while and so he directed his attention at the complainant first as it was 6.45 and classes were due to start at 7 and he had assumed the complainant was a student coming with a query before going to class. The complainant told the hearing that she was in fact already a student of the respondent at the time and was studying for a Graduate Diploma in Management.

6.6.4 Mr. A advised the hearing that he knew the teacher Ms. B would take a while to deal with and so he wanted to deal with the complainant’s query first rather than delay her and make her late for class. Mr. A advised the hearing that he had asked the complainant how he could help her or something along those lines. The teacher Ms. B was also at the hearing and advised the hearing that she was in the queue in front of the complainant and that she was waiting to speak to Mr. A with a box of scripts which would take a considerable amount of time and so she was happy for him to deal with the complainant first that it would be normal for him to do so.

6.6.5. The complainant advised the hearing that Mr. A beckoned her into his office and that she began to explain that she was interested in attending the course on Digital Marketing and Social Media, and about the email which had been sent on her behalf by Paul Partnership. Mr. A told the complainant that he had not received the email and asked her if she had registered for the course. The complainant told the hearing that Mr. A then told her that she was “not going to attend any lecture” unless she had registered and paid the fees. The complainant told the hearing that she tried to explain about the email again but that Mr. A repeated that she was not attending any lectures unless she had paid the fees.

6.6.6. The complainant submits that there were a number of people in the queue who heard this conversation and that she felt humiliated and intimidated by the way in which Mr. A had picked on her. The complainant following this incident went home and posted a message on the respondent’s face book homepage stating that what “she experienced today was racism”.

6.6.7 Witness for the respondent, Mr. A advised the hearing that he had not at the time of meeting the complainant received any email from PAUL Partnership on her behalf. He advised the hearing that the complainant had referred to an email which he hadn’t received and that she told him she was interested in attending lectures on the course on Digital Marketing and Social Media. Mr. A advised the hearing that this course had started in January and was some weeks into lectures already and so he asked the complainant if she had registered for the course to which she replied she had not. Mr. A told the hearing that he went on to explain to the complainant that he had not received any email and that she could not attend lectures unless she had registered and paid the fees for the course. Mr. A stated that he was simply advising her of the respondent’s policy and procedure regarding attendance at courses and having regard to the fact that this course was by now 4 weeks into the course. The complainant advised the hearing that she felt humiliated and embarrassed by Mr. A and that she then left the office and went home.

6.6.8 It emerged at the hearing that the complainant who was already a student of the respondent at the time of the incident was three days later, on the 7th of February, 2014, offered a place on the course the subject matter of the incident which she then refused. Mr. A stated that he had not, at the time of meeting the complainant, received the email from PAUL Partnership but that he had the next day asked the Admin staff to check if any such email had been received by them. Mr. A advised the hearing that it emerged that the email had been sent to the respondent’s general email address instead of to his email address. The email was then forwarded to Mr. A upon his request. Mr. A stated that once he read the email it was clear that PAUL Partnership were enquiring as to whether the complainant could join the course given that it was already started and that they were willing to sponsor her and pay the fees once they had established that she could join the course at this late stage. Mr. A stated that having read the email he phoned PAUL Partnership to advise them that the complainant could join the course. Mr. A advised the hearing that he had also offered to meet with the complainant to clear up any misunderstandings given the message she had put on the respondent’s Facebook page. Mr. A stated that Ms. K from PAUL Partnership had phoned him back the next day and advised him that the complainant had declined the offer to meet with him and that she no longer wanted to attend the course. Following this the respondent followed up with the complainant on the 13th of February asking her if she was happy with the outcome and it was after this that the request for an investigation issued from the complainant’s solicitor.

6.6.9 The complainant submits that Mr. A’s treatment of her in respect of this incident amounts to discrimination and harassment on grounds of race. It is clear from the evidence adduced that no reference was made to the complainant’s race either direct or indirect and that Mr. A merely advised the complainant of the respondent’s policy in respect of the requirements of registering and paying of fees before attending lectures. The complainant has adduced no evidence to support her claim that this treatment was due to her race or that someone of a different race was/ or would have been treated differently, in the same circumstances. The complainant at the hearing placed a lot of emphasis on the fact that Mr. A permitted her to skip the queue and go ahead of a teacher Ms. B, the complainant submits that her view of this was that her “black skin irritated him” so much that Mr. A wanted to deal with her straight away. Mr. A however advised the hearing that he had skipped Ms. B who was in front of the complainant as he knew it would take a considerable time to deal with her and to go through her class assessments. Ms. B corroborated this evidence at the hearing. I find that the respondent’s explanation as to why the complainant was allowed to skip the queue is both credible and consistent. In addition, having heard all of the evidence in respect of the conversation between Mr. A and the complainant in respect of her request to join a course which had already commenced, it is clear that there was some element of misunderstanding between the complainant and Mr. A, which can be attributed to the fact that the complainant assumed Mr. A had read the email from PAUL Partnership though Mr. A had not in fact received such email at that stage. The evidence from the parties in respect of this conversation does suggest an element of misunderstanding but does not support the claimant’s allegations of discrimination and/or harassment on grounds of race. I am also mindful that the complainant was in fact offered the course which is the subject of the complaint three days after the meeting outlined above. I am thus satisfied from the totality of the evidence adduced here that the complainant was not discriminated against or harassed on grounds of race in respect of this matter.

6.7 Harassment and Victimisation

6.7.1 The complainant told the hearing that following her meeting with Mr. A on the 5th of February, she went home and posted a message on the respondent’s Facebook page stating “what I have experienced today is racism” The respondent advised the hearing that it removed the post from its Facebook page as it was an inappropriate forum for such an issue to be raised but that it had then replied to the complainant separately and had advised her that they would be carrying out an internal investigation in relation to the matter. The complainant told the hearing that she received a further reply on the 13th of February, referring to the fact that the respondent had been advised that the matter had been discussed with Paul Partnership and asking if the complainant was happy with the outcome. The complainant advised the hearing that she was not involved in the discussion with PAUL Partnership and that she was not made aware of any such discussion. The complainant, upon further questioning, told the hearing that she had been advised by Ms. K of PAUL Partnership, that following the incident of the 4th of February and the complainant’s posting on the respondent’s Facebook page, that Mr. A had phoned PAUL Partnership on the 7th of February, in response to their email and had advised them that the complainant could join the course in question even though it had already started. The complainant advised the hearing that she had then told Ms. K that she was no longer interested in doing the course.

6.7.2 The complainant advised the hearing that her solicitor then wrote to the respondent on the 18th of February seeking information in respect of their investigation of the matter and indicating that further action may be taken. The respondent replied on the 26th of February 2014 inviting the complainant to submit her complaint for investigation under the respondent’s Customer Care Policy and enclosing a copy of that policy. The complainant requested such an investigation by letter dated 18th of March, 2014. The respondent replied to the complainant on 9th of April, 2014 indicating that they found no evidence of racism in Mr. A’s dealings with the complainant. The respondent stated that the complainant could however have been dealt with in a ‘more customer friendly manner’ and apologised for same. The complainant at the hearing indicated that she was not happy with the outcome of this investigation, the complainant also told the hearing that she was not happy with the respondent’s investigation process.

6.7.3 The respondent at the hearing gave evidence as to the procedure followed by the respondent in investigating complaints under its Customer Care policy. Witness for the respondent Ms. C advised the hearing that the investigation was carried out based on a statement of complaint submitted by the complainant as well as a written statement from Mr. A. Ms. C advised the hearing that investigations of complainant’s under the Customer Care Policy are carried out based on documents and written statements as it is a paper based exercise. The respondent stated that the current matter was investigated in accordance with its Customer Care Policy and was a paper based exercise. Ms. C advised the hearing that the investigation concluded that there was no evidence of racism in Mr. A’s dealings with the complainant but stated that the complainant could however have been dealt with in a ‘more customer friendly manner’ and apologised for same. Ms. C at the hearing elaborated on what was meant by a “more customer friendly manner” and stated that due to a lack of resources there is no private area or room to meet with people with queries such as the complainant’s and that being called in to a room with a half door open onto a public waiting area was not an ideal place for dealing with such matters. I am satisfied from the totality of the evidence adduced that the respondent carried out the investigation in accordance with its Customer Care policy. I am also satisfied that and that no evidence of discrimination or harassment on the grounds of race has been adduced by the complainant in relation to the respondent’s investigation of this matter. I am thus satisfied from the totality of the evidence adduced here that the complainant was not discriminated against or harassed on grounds of race in respect of this matter.

6.7.4 The complainant has indicated that she was not happy with the process or outcome of the respondent’s investigation and proceeded to lodge a complaint with the Equality Tribunal. I am satisfied from the totality of the evidence adduced in relation to this matter that the treatment of the complainant in this regard does not amount to adverse treatment on foot of an action defined in Section 3(2)(j) of the Equal Status Acts 2000-2015. Accordingly, I am satisfied, that the complainant was not victimised by the respondent in relation to these matters.

7. DECISION OF THE EQUALITY OFFICER

7.1 I have completed my investigation of this complaint and in accordance with Section 25(4) of these Acts, I conclude this investigation and issue the following decision. I find –

(i) that the complainant was not discriminated against by the respondent on the ground of race in terms of Section 3 and, contrary to Section 7 of the Equal Status Acts, 2000-2015.

(ii) that the complainant was not harassed by the respondent on the ground of race in terms of Section 11 (5) of the Equal Status Acts, 2000-2015.

(iii) that the complainant was not victimised by the respondent in terms of Section 3(2) (j) of the Equal Status Acts 2000-2015.

____________________

Orla Jones

Adjudicator/Equality Officer

24th of January, 2017