DEC-E2017-071

EMPLOYMENT EQUALITY ACTS

DECISION NO. DEC-E2017-071

PARTIES

SHAZ MINHAZ

(Represented by Liam Bell BL, instructed by Crossan Hanratty & Co. Solicitors)

V

Boots Retails (Ireland) Limited

(Represented by IBEC.)

File Nos. EE-2014-282

Date of Issue:20th  September 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 is also a claim of of victimisation.

2. Background

The complainant referred a complaint against the above respondent under the Employment Equality Acts 1998 to 2015 to the Equality Tribunal on the 20th May, 2014

In accordance with his powers under section 75 of the Employment Equality Acts, 1998-2015 the Director delegated the case on the 10th January, 2017 to me, Niamh O’ Carroll Kellly, 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 20th January, 2017

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. Preliminary Argument – Time Limits:

Respondent’s Submissions:

As a preliminary point the Respondent submits that an element of the Complainant’s claim is outside the statutory time limits within which a claim can be brought, in accordance with Section 77 of the Act which states as follows;

The Act is clear that a Complainant is only entitled to bring a claim in respect of contraventions of the Act as far back as six months prior to the lodging of the Workplace Relations claim. With specific reference to this complaint under the Employment Equality Legislation, it is clear that it was not received by the Workplace Relations Commission until 20th May 2014. The last date that a relevant act of discrimination could have occurred within the meaning of the Act was therefore on 20th November 2013.

The Complainant, in his submission to the Commission, states that he requested participation in the stepping stones training programme most recently in 2009, some four years prior to the lodgement of this claim.

Furthermore, the Complainant refers to his being removed from the Company Health Care Assistant training, alleging that this decision was made of discriminatory reasons. Notwithstanding the Company’s absolute denial of such an allegation, the Complainant was removed from this programme in September 2012, some twenty months prior to the lodging of the Complainant’s claim. The fact that no claim was received by the Commission until May 2014 means that not only did it exceed the 6 months time limit outlined in Section 77(5) but also the 12 month extended time limit as outlined in 77(6). The Respondent respectfully submits, therefore, that this Claim is statue barred and that the Chair resultantly does not have jurisdiction to hear this complaint.

Complainant’s Submissions.

The situation in relation to the non-advancement, whether it be via the stepping stones program or the Health Care Assistant programme of the complainant has been ongoing for many years and are not the two specific failures as set out by the respondent. The non - advancement of the complainant within the respondent company is directly related to the complainant’s religion. The complainant is a highly skilled and educated individual with ample experience. The company to date continue to overlook him. This situation was present immediately prior to the filing of the claim and is still present to date.

4. Decision – Preliminary Point.

S77(5) 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 the occurrence or, as the case may require, the most recent occurrence of the act of discrimination or victimisation to which the case relates.

(6) If on an application made by the complainant the Director, the Labour Court or, as the case may be, the Circuit Court is satisfied that exceptional circumstances prevented the complainant's case (other than a claim not to be receiving remuneration in accordance with an equal remuneration term) being referred within the time limit in subsection (5)—

(a) the Director, the Labour Court or the Circuit Court, as the case may be, may direct that, in relation to that case, subsection (5) shall have effect as if for the reference to a period of 6 months there were substituted a reference to such period not exceeding 12 months as is specified in the direction, and

(b) where such a direction is given, this Part shall have effect accordingly.

The complainant in his evidence outlined multiple examples of when others were promoted and he was not considered or when others were given the opportunity to upskill and he was denied the opportunity.

Specifically, in relation to ‘Stepping Stones’ the complainant stated that he gave up his efforts in September, 2010 having been rejected and ignored for a number of years. It was open to the complainant to lodge a claim in relation to this part of his claim in 2010. He did not do so until May, 2014.

In relation to the Health Care Assistant training, I find, based on the evidence adduced during the four days hearing, that the complainant removed himself from the training in Jervis Street branch in September, 2012 and has not applied for any other related training since. The complainant stated that he was from a medical background and that is why he was most anxious to upskill within the respondent entity. However, the evidence suggests otherwise. Since September, 2012 the complainant has not applied for or even informally requested that he be placed on any of the respondent’s upskilling courses. In his own words “I gave up my efforts”. It was open to the complainant to file a claim with the Equality Tribunal at that time. He failed to do so.

The complainant further alleges that he was denied the opportunity of promotion within the respondent entity on the grounds of race and religion.

The complainant alleges that since 2007/2008 he has not been called for interview as a Team Manager although he has made applications for same. There has been a total failure to advertise such posts to the Complainant, despite his request that he be informed of such vacancies. The Complainant contends that he was not allowed train on the basis of his religion/nationality.

He states that between 2006 to 2010 a number of team managers were appointed, arrived and left. No opportunity was provided to him to apply for the position of team manager despite the Complainant’s clear express repeated requests in this regard. The matter was raised repeatedly by the Complainant with his manager and a part-time manager. It was open to the complainant to file a claim in relation to the alleged denial of promotion at any stage between 2006 and 2010. He failed to do so.

The complainant gave one example of an individual who was promoted in October, 2013. The complainant had until April, 2014 to lodge his claim in relation to that complaint. He lodged his complaint in May, 2014, one month outside the six month statutory time limit. The complainant did not advance any argument that could allow the time to be extended by a further six months.

I can find no nexus between the complainant’s complaint in relation to his non advancement with the respondent company and his claim in relation to the practice of his religion. Therefore, for the reasons set out above that I find that this part of the complainant’s claim (training and promotion) is statute barred. I do not have jurisdiction to hear that matter.

**************************************************************

5. The complainant’s submissions:

The Complainant has claimed that he has been and continues to be treated in a manner which is discriminatory and that the discrimination is invidious and contrary to the provisions of the Employment Equality Act. The Complainant states that he has been discriminated against by the Respondent in his employment on the grounds of religion. He claims he has been denied proper opportunity and/or facilities to pray in work. He claims that these facilities have been withdrawn, changed and withdrawn again in an attempt to interfere with and/or stop the practice of his religious observances. He further claims that he has been denied promotion based on his religious beliefs.

The Complainant is a Muslim and is originally from Bangladesh. He has a Master’s degree in Economics. While in Bangladesh he was the owner and Director of a company selling household items. He was also involved in a non-governmental organization providing micro credit to rural communities. The Complainant’s family has a background in medicine and in a business supplying alternative medicine products.

The Complainant came to Ireland in February 2002 and from that time until he joined the respondent, he worked in various commercial enterprises.

The Complainant decided to join the respondent because he was impressed with the organization and its history and because of the parallels between it and the businesses he had been involved in in Bangladesh.

Religion.

Initially, the Complainant having explained to his employer that he is a devout Muslim and required to pray a number of times per day,(specifically between 2.00pm and 3.00pm and after 5pm), was provided with the facility to do so in an empty and unused plant room in the ancillary area of the store in Dundrum. In addition, the Complainant was facilitated in being allowed to take his rest breaks to coincide with the times at which, pursuant to his religion, he was required to pray. The Complainant prays 5 times per day, although times and frequency will vary as between winter and summer. Generally speaking, the Complainant will pray twice at home and two/three times during the working day.

For approximately 9 years, the Complainant prayed in the aforementioned room without issue. However, in December 2013 having already prayed in the room once that day the Complainant, when he attempted to use the room was told that he could no longer use that room and that it had been locked. He was told this by a fellow employee and the then team manager. The Complainant was given no notice of the locking of the room and the only explanation given to the Complainant was that this was for Health, Safety and security reasons. The room is not used for stock and there was no conceivable or logical reason why the Complainant should have been prevented from using the room, save to prevent him from praying there. Despite his repeated requests, the Complainant was not facilitated with another space within which to pray. The Complainant was reduced to praying in a corridor where there was substantial passing traffic. The Complainant prayed in the corridor for approximately two weeks. He was never subsequently allowed access to the plant room to pray thereafter. Subsequently, the Complainant after proposing this space to management, was requested by management to pray in an office which is also in the ancillary area to the store. The Complainant was happy to do so.

The Complainant continued to pray in the said office for some time. However, the Complainant was not able to use the office space exclusively and when it came time to pray, the Complainant would invariably go to the office for prayers to find it in use. This would lead to the Complainant having to wait to use the room and not have time or the space to pray, unless the office was vacated during these break times. The said office was then fitted without notice or consultation with the Complainant, with a lock and the Complainant was in effect denied access to this room.

On the 17th of December 2015 at 9.30am the Complainant was approached by the store manager, and was reprimanded for praying outside of the premises of the store as there had been a complaint that he had been doing so. The Complainant has on occasion prayed in the parking area of the shopping centre outside of the store. The Complainant requested in writing an explanation for this interference with the Complainant’s exercise of his religion but has received no answer.

For the past year, (2015/16), the Complainant has been reduced to again praying on the corridor of the ancillary area. On the 4th of June 2016, the Complainant was told by his team manager that the store manager was not happy with the Complainant’s practice of praying on the corridor. He was informed that he should now pray in the Stockroom of the ancillary area. The management are however entirely aware that the Complainant and all shop floor staff are strictly prohibited from visiting the Stockroom during breaks by way of strict company policy. The Complainant brought this fact to the attention of management, but no alternative has been offered, nor it would appear has one been considered.

For a considerable period , it is alleged the Respondent’s servants and agents have both in an overt manner and in a covert manner attempted to prevent the Complainant from the practice of his religion and the manifestation of his religious beliefs. The Complainant has been neither disruptive nor particularly vocal in attempting to assert his right to do so. The Respondent has no objective justification for attempting to so limit the Complainant’s rights nor is the limitation of the Complainant’s rights to practice and manifest his religion proportionate.

The Complainant’s shift times have also been changed so that his break times no longer coincide with the Complainant’s prayer times. The Respondent has deliberately and against the Complainant’s express wishes, altered the Complainant’s working hours so as to prevent the Complainant from taking his breaks to coincide with his prayer times and thus sought to prevent the Complainant undertaking his prayers and exercising and practicing his religion.

Victimisation.

No evidence was adduced in relation to the ‘Victimisation’ claim as set out in the complainant’s complainant form.

6. Respondent’s Submissions.

The respondent submits that the complainant has not demonstrated a prima facie case under the Employment Equality Acts 1998 to 2015 as is required. In particular, the Complainant has not identified any comparator in relation to whom he was less favourably treated, particularly with respect to the issue which is entitled in his submission as “Practice of Religion and manifestation of religious beliefs”.

Boots Retail Ireland is an international pharmacy-led health and beauty group. The respondent opened their first store in the Republic of Ireland in 1996 and now has over 86 stores nationwide. Boots prides itself in its diverse workforce.

The Complainant began employment with the Respondent Company on 31st January 2005 as a Store Assistant. The Complainant works part-time, fifteen hours per week on Saturdays and Sundays.

The Complainant is of the Muslim faith and prefers to pray a number of times per day. The Complainant alleges that he has been treated in a discriminatory manner in not being given a designated area in which to pray. This is in fact incorrect, as the Complainant continues to pray in a corridor ancillary to the Respondent’s premises and the Respondent does not interfere with same.

For an extended period of time, some nine years, he was permitted to pray in a particular room in the Dundrum store during his rest breaks. This room is known by the company as the “plant room”. In this room is located the air conditioning unit for the premises among other equipment. Management facilitated the Complainant’s use of this room where possible, and were amenable to allowing the Complainant to take his rest breaks at the times conducive to prayer, where the business needs permitted same.

In late 2013, a health and safety concern came to light. This concern arose out of the electrical equipment stored in the “plant room”. At any given time, up to 4000 volts of electricity can pass through the equipment within, which gave rise to a risk of fire if adequate safety precautions are not taken. A fire risk assessment was carried out. In that assessment risks were identified. As a consequence of this risk being identified, access to the room either by staff or for storage of items was prohibited. Authorised engineers are the only exception to the prohibition. Prior to this, a number of employees had entered the plant room on occasion, for example to alter heat settings. There is also another member of staff of the Muslim faith who previously used this room for prayer. The room has remained locked since this time, and a sign was posted to the door informing employees that they would now be forbidden to enter. This restriction is applied consistently among all employees; all are restricted from entrance, irrespective of race or religion. The Complainant cannot and has not identify a comparator of another faith or race who is treated differently in this regard.

In recognition of the fact that access to the plant room was no longer safe or viable, the Complainant was granted access to the Store Manager’s office as an alternative, for the purpose of prayer during his breaks.

The office in question is used by the Store Manager to conduct management and administrative duties throughout the day. As such the Respondent could not guarantee exclusive access to this room to the Complainant for the purpose of practicing his faith, nor that would it be vacant during his rest breaks. Notwithstanding this, for a time the Company were happy to allow the Complainant to use the office for these purposes where practicable, and did not deny the Complainant access to the room even when it was in use.

At this point the room was unlocked such that all employees could gain entrance without difficulty. However, data protection was identified as a concern due to the type of employee information stored in this room and the general access all staff had to it.

As a measure to further protect the personal and sensitive personal data of employees, the Respondent has locked the office in question so that employees do not inadvertently view or gain access to data pertaining to other employees. This is in line with the principles of Data Protection, one of which is that such data should be kept safe and secure. The Complainant was offered the use of the General Office within the company premises which does not present the same data protection risk, but has opted to use the corridor he refers to in his claim form. The Respondent submits that the protection of personal data constitutes an objective justification for the restriction of access of all employees to the office in question.

The Complainant has since primarily prayed in the corridor he refers to in his submission. There is no conflict of evidence in this regard. This corridor is located in the staff area. It is accessible only by employees and is the most secluded of the corridors in the store location. The corridor is a dead end which leading only to emergency security doors, such that footfall in the corridor in question is minimal, even by other staff members. The Respondent Company submits that this area is therefore quiet and appropriate for the use of prayer. The complainant states that bins and cleaning products are left in the area where he prays. That is denied. This is a fire escape route and as such is keep, as much as possible, clear from all items.

On occasion, as outlined in the Complainant’s submission, he opted to pray outside the shopping centre in the parking area. Following a request from Dundrum Town Centre Management, the Company asked that the Complainant continue to pray within the store’s premises.

Store management have, on a number of occasions, offered the Complainant the use of an area in the stock room in which to pray during his rest breaks. This particular section of the stock room is unused for stock and separated by a pillar from the main stock room area. Two other staff members of the Muslim faith choose to pray in this area.

The Complainant states in his submission that staff members are not permitted to enter the stock room during rest breaks. This is not the case. This area of the stockroom remains available to the Complainant, should he wish to use it for prayer, and the offer for him to do so accordingly still stands. One of the employees, in common with the Complainant, had previously prayed in the plant room. The Respondent therefore submits that this is a suitable area for the use of prayer.

The Complainant asserts that the restriction of the use of the plant room, and the manager’s office, during his rest breaks, discriminates against him on the grounds of his religion and nationality. The Respondent rejects this claim as this restriction was not limited to the Complainant, nor to any employees of any specific religion or race. Indeed, no employee, of any religion or race was thereafter granted freedom to enter the rooms in question at liberty whether to pray or otherwise, nor has the Complainant identified any comparator in this regard. Furthermore, the Respondent submits that it was reasonable to request that the Complainant refrain from praying in the car park once a complaint was received regarding same. This request was made by Dundrum Town Centre and was simply communicated by the Respondent Company. Notwithstanding this, the Complainant has continued to pray in the corridor in the staff area as an alternative and has not been estopped from doing so.

The Respondent has therefore provided the Complainant with three options in which he can pray; the stock room, the corridor and the general office, and encourages the Complainant’s use of any of these areas for the purpose of practicing his religion.

7. Adjustments to the Complainants Shift Pattern

The Complainant asserts that changes in the Complainant’s shift pattern were put in place deliberately “so as to prevent the Applicant from taking his breaks to coincide with his prayer time” and that in doing so the Respondent “thus sought to prevent the Applicant undertaking his prayers and exercising and practicing his religion.” Such occurrences are infrequent and on an ad hoc basis. Where such situations do arise which require an employee to attend work outside of their normal working hours, all employees, regardless of race or religion, are required to exercise a degree of flexibility. There are other employees of the same religious background as the Complainant who are similarly flexible in this regard without issue. The respondent has always amended the complainant’s break times, if altered by ( new) management who are unaware of the importance of the time for the complainant, back to the times that facilitate the complainant’s time for prayer. For the most part, however, employees work as per there normal agreed working hours and as such the Complainant is generally facilitated in taking his rest breaks to coincide with his preferred prayer time. No changes have been made to the Complainant’s normal hours of work nor can any change be made without prior consultation with the Complainant.

At no point did the Respondent seek to prevent the Complainant from exercising his religious freedom by changing his work pattern. The Complainant’s rest breaks are allocated in accordance with the Organisation of Working Time Act. The Complainant remains free to pray during his rest periods and continues to do so.

8. Findings and Conclusions.

The matter for consideration is whether the respondent discriminated against the complainant on the religious or race ground in terms of sections 6(1)(a) 6(2)(e) and 6(2) (h) of the Employment Equality Acts, in contravention of 8(1) of that Act. I have taken into account all of the evidence, written and oral, submitted to me by the complainant and the respondent.

Employment Equality Act, 2000.

Section 85A of the Employment Equality Acts 1998-2011 sets out the burden of proof as follows:

(1) Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to her or her, it is for the respondent to prove the contrary.”

6.—(1) For the purposes of this Act, discrimination shall be taken to occur where, on any of the grounds in subsection (2) (in this Act referred to as “the discriminatory grounds”), one person is treated less favourably than another is, has been or would be treated.

(2) As between any 2 persons, the discriminatory grounds (and the

descriptions of those grounds for the purposes of this Act) are—

(e) that one has a different religious belief from the other, or that one has a religious belief and the other has not (in this Act referred to as “the religion ground”),

(h) that they are of different race, colour, nationality or ethnic or national origins (in this Act referred to as “the ground of race”),

- Directive 2000/78/EC like Section 6 provides that discrimination shall be taken to have occurred where a person is treated less favourably than another is, has been or would be treated on the ground of religion or alternatively race, ethnicity or nationality.

In relation to religion, the Treaty on the functioning of the European Union incorporates the Charter of Fundamental Rights of the European Union (hereinafter the Charter). Article 10.1 of the Charter provides that every person has the right to freedom of thought, conscience and religion. This right includes the freedom, either alone or in community with others and in public or in private, to manifest religion or belief, in worship, teaching, practice and observance. The Charter has the same legal standing as the Treaties and is part of the primary legislation of the European Union. The Directive must be read in harmony with the Charter. Article 52.3 of the Charter provides that in so far as the Charter contains rights which correspond to rights guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms, the meaning and scope of those rights shall be the same as those laid down by the Convention. Article 10.1 of the Charter corresponds to Article 9(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms. Consequently, the jurisprudence of the European Court of Human Rights (ECHR) on the interpretation of the Convention for the Protection of Human Rights and Fundamental Freedoms applies in determining the ambit to be ascribed to the Charter. It follows therefore that the right to manifest religion, for example in observance, is central to the notion of religion itself. Consequently, if a person is treated less favourably on grounds relating to religious observance, they are discriminated against on grounds of their religion.

Although I accepted that an employee, in this jurisdiction, is entitled to manifest religious beliefs in work and that this right is protected. That right must be balanced with the right of an employer to limit these rights provided there is an objective justification for doing so and such limitation must be proportionate, McAteer v South County Tipperary County Council (2014).

The complainant herein alleges that he was discriminated against on the ground or his race and his religion. He claims that the respondent has interfered with, prevented and/or has not facilitated him in relation to his praying. The complainant is a muslim and is required to pray five times per day. Up until late 2013 the complainant prayed in a ‘plant room’. All staff had access to this room. The room contains boilers, fuse boxes, generator and the control panel for the heating system. Evidence was adduced that a health and safety issue was identified specifically in relation to the staffs use of the room generally. An audit was carried out and following receipt of the findings the respondent made the decision to restrict access to the room. This restriction applied to all staff members. This decision impacted on the complainant and one other employee of the muslim faith’s use of the room for prayer. The complainant and the one other employee were offered alternatives venues in which to pray. The other employee made the decision to pray in the stock room from that point onwards. The complainant opted to pray in the manager’s office. I am satisfied that the restriction placed on all staff entering the plant room was put in place solely on health and safety grounds and impacted on all staff equally regardless of their race or religion.

The complainant began using the Manager’s office for prayer. He had complaints about the suitability of the office. He stated that at times of prayer, the manager could be in the office working and as a result he couldn’t concentrate on his prayer. In any event his use of the office was restricted following the identification of data protection issues due to the storage of personnel file in that room. I am satisfied that the respondent’s data protection issues were genuine and that they did have and continue to have a legal obligation to protect certain data in relation to employees. I am satisfied that the decision to lock the office door was made solely in relation to those data protection issues and was not in any way related to the complainant, his religion or his race. When the respondent placed a lock on the office door they immediately gave the complainant the choice of three other areas in which to pray, the general office, the corridor or the store room. At that time there were two other employees of the muslim faith were using the store room in which to pray.

The complainant had issues with all three options. He stated that the general office was occupied by other staff on many occasions, the corridor had bins, rubbish and cleaning products directly beside where he prays and that access to the storage room was restricted. He specifically stated that he wasn’t allowed to bring his prayer mat into the storage room due to an anti- theft policy the respondent had.

There is no legal requirement on the respondent to provide a designated or exclusive area in which employees can carry out their religious beliefs, whatever they might be. The respondent, for reasons that have been objectively justified restricted all staff, which included the complainant, use of the plant room, and the manager’s office. In doing so they provided three alternatives to the complainant.

In relation to the store room, the complainant’s evidence that he couldn’t bring his pray mat into the storage room due to the anti-theft policy is not creditable. Two other employees of the muslim faith bring their prayer mats into the storage room to pray and the respondent has never taken issue with that. Furthermore, the complainant did not state that he was actually ever prevented from or reprimanded for bring his prayer mat into the storage room.

The complainant’s complaints in relation to the corridor are not credible. The area at the end of the corridor where the complainant prays is adjacent to a fire door. He produced photographs on one particular date showing bins and cleaning products in the area. He did not produce photographic evidence of any other dates the area contained bins and cleaning products. I accept the respondents evidence that this area is, for the most part, kept clear of all items which could hinder ones use of the fire escape route. I accept that on the very odd occasion there may have been some items left in the area that didn’t lend themselves to the atmosphere required by the complainant but find that same did not prevent or interfere with the complainants right to practise his religious beliefs.

Finally, in relation to the use of the general office. The respondent stated that the office is rarely in use over the weekend, which is when the complainant works. They stated that it was his choice to use the corridor despite the office being made available to him. I find that the office was available to the complainant and for his own personal reasons he decided not to use it, instead opting for the corridor.

I find that the complaints in relation to the complainant being prevented from praying outside the respondents premises in the shopping centre itself is outside the control of the respondent.

The respondent did everything they could, in the limited space they had, to facilitate the complainant. They arranged his break time around his times for prayer. Any alternations made to his break times by managers not familiar with his requirements were immediately returned to normal upon notification. Offers of not one, but three different areas in which the complainant could pray were made, one of which met the needs of the two other muslim employees. I find that the complainant’s expectation of the respondent’s legal duty towards him was far too high and unrealistic. There is no legal requirement on the respondent to provide a designated area/room for the specific purpose of facilitate prayer.

I find that the respondent did not discriminate against the complainant on the grounds of race or religion.

Decision.

I find that the respondent did not discriminate against the complainant on the grounds of race.

I find that the respondent did not discriminate against the complainant on the grounds of religion.

I find that the complainants in relation to the non- advancement / training are statute barred.

The complainant’s case fails.

I dismiss the claim in relation to victimisation.

________________

Niamh O’Carroll Kelly

Adjudication Officer/Equality Officer

20th September 2017