EDA1840

The Adjudication officer decided as follows:-

6. FINDINGS & CONCLUSIONS

I have to decide if the complainant was the subject of discrimination pursuant to Section 6 (2) (c) and (h), Section 8 (b) (c) and (d) and Section 14A and Section 74 (2). In reaching a 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 presented at the hearing.

I am satisfied that all of the claims lodged (save for discrimination on the grounds of race in relation to the desk issue and the harassment claim) are statute barred. I am satisfied that the claim in relation to discrimination on the grounds of race does not come within the scope of the act and that there was no evidence to support the complainant’s complaint that she was discriminated against by the respondent based on the fact that she is Polish. Furthermore, I am satisfied that the claim in relation to Harassment does not come within the scope of the act and that there was no evidence to support the complainant’s complaint that she was harassed based on the fact that she is Polish.

7. DECISION

I have investigated the above complaints and make the following decisions in accordance with section 79 of the Acts that:

• The complainant failed to establish a prima facia case of discrimination.

• The complainant has failed to established a prima facia case of victimisation

• The complainant has failed to establish a prima facia case of harassment.

• The complaint fails.

That decision was delivered on 4 October 2016. The Complainant appealed against that decision to this Court on 11^thof November 2016.

The case came on for hearing before the Court on several occasions over 2017 and was adjourned on each occasion to allow either side address issues that had arisen in the course of each hearing. The matter was finally dealt with over two days on 18 April and concluding on 25 June 2018.

Complaints

The Complainant makes three complaints to this Court.

• 
  1. She complains that she was discriminated against by the Respondent on the Race ground in relation to a promotion that took place in or around February 2015.

  2. She complains that she was discriminated against on the race ground by the Respondent when she was excluded from the Flexitime system with effect from 9 November 2012.

  3. She complains that she was, on the race ground, paid less pay than four named comparators.

The Complainant made a comprehensive written submission to the Court through her Representative Mr. Peter Nowak. That submission contained extensive appendices recording the engagement between the Complainant and the Respondent over the course of her employment.

The Court drew the Complainant’s attention to s85(1) (a) of the Employment Equality Acts 1998 – 2015 and invited her to identify in writing the facts she intended to establish in evidence and on which she was relying for the purposes of the section. Through her representative she submitted a written document to the Court setting out the facts she intended to establish in evidence and rely on for the purposes of making out her case.

The Respondent then opened its replying submission with appendices to the Court.

The Complainant’s Representative was invited to comment on that submission, to correct any errors or to take issue with any assertion or argument contained therein.

The Complainant at that point gave sworn evidence to the Court over several days in which she sought to make out the facts on which she relied on in this case.

In that regard she was taken through her evidence by her representative Mr Nowak and was then cross examined on the evidence by Mr Adrian Twomey, Solicitor, on behalf of the Company. The members of the Labour Court put some questions to the witness to clarify statements made in evidence that had been unclear to them.

The Complainant’s representative was then invited to re-examine the witness on any matters arising from the cross examination or questions of clarification put to the witness by the members of the Court.

The Complainant’s Submission to the Court

In her submission to the Court the Complainant states as follows: -

Qualifications

The Complainant holds the following qualifications

1995 Graduated from the High School in Warsaw after completing a four-year course in Finance and Accounting.

2001 Completed a Course for Chief Accountants in Poland

2002 awarded the degree of M.A. in Economics

2004 Awarded a Post Graduate Diploma in Accounting and Finance from the Warsaw School of Economics

2004 – Certificate in booking and accounting issued by the Department of Finance in Poland

Employment with the Respondent

The Complainant entered into employment with the Respondent by way of a contract dated 30 March 2006 as a Trainee Management Accountant. The employment contract is silent on the requirement to qualify as an ACCA. However, she registered with the relevant professional body and commenced studying to sit the relevant examinations leading to admission as an ACCA. She sought exemptions from the examinations on the basis of her extensive qualifications. She was awarded exemptions in two exams. She contends that a person holding similar British or Irish qualifications would have been awarded 9 exemptions.

ACCA Exams

In 2007 she decided the course of study leading to admission as an ACCA was not benefiting her and she decided not to pursue her studies in that area further.

Maternity Leave

In July 2008 the Complainant departed on maternity leave returning to work on 29 June 2009. Before returning to work she requested a reduction in her working week to 20 hours. This request was granted by the Respondent.

Transfer to another Department

In January 2011 the Respondent transferred the Complainant to the Cash Management Section of the Company. On the 21^stNovember 2012 the Complainant was issued with a revised contract of employment which contained a provision excluding her from the official flexi-time system of working.

Excessive Workload

The Complainant submits that she was allocated excessive workloads that could not be completed within 20 hours per week, she submits that she sought an increase in her hours to match the workload assigned to her. She states that, in response to this request, her hours were increased to 30 hours per week for a six-week period commencing 12 March 2013. She submits that in the middle of 2014 the Respondent employed two individuals one of whom was later appointed to a position of team leader.

Complaints

Unlawful discriminatory treatment relating to Promotion

The Complainant submits that the Respondent disregarded her when the occasion for promotion arose in or around February 2015. She submits that the Respondent employed a Ms Emma Cooney in July 2014 with the intention of promoting her to the role of team leader. She submits that Ms Cooney was not at that time a qualified accountant. She is also of the view that Ms Cooney did not have sufficient knowledge of that role. She states that she was the source of Ms Cooney’s information in the first months of her employment in the cash management section. She states that she trained and shared her knowledge with Ms Lubica Stajnachova who in turn passed know-how on to Ms Cooney. Ms Cooney after a few months was appointed team leader. All staff in the department were so notified by way of internal communication.

The Complainant states that it “is not known based on what criteria she was assessed suitable for the position of team leader given the fact that she was freshly-employed".

The Complainant repeated this submission in evidence to the Court.

The Respondent in its submission in this regard states that the Complainant was employed as a trainee management accountant and employed in the Reporting Section of the Finance Department. All employees in the Reporting Section must hold or be working towards a qualification recognised by one of the accountancy bodies in Ireland. The Complainant initially registered to undertake a course of study leading to qualification as an ACCA registered accountant. She subsequently abandoned those studies. In those circumstances she was no longer eligible to continue working in the Reporting Section. As a consequence, the Company reassigned her to work in a department that did not require professional qualifications. The Complainant was assigned to the Cash Management Section where she worked as an administrator. In that capacity she reported to Ms Lorraine McIntyre who was the Senior Administrator/Team Lead.

In 2014 Ms McIntyre left the Company. Morgan McKinley was hired to recruit a replacement for Ms McIntyre. They sourced Ms Emma Cooney who had experience working in an accountancy practice and had experience of managing people. It states that the Complainant expressed no interest in the position and had never expressed an interest to the HR and Office Manager, to her manager or to the CFO in progressing to a more senior position. She had never undertaken people management training and she had demonstrated no people management skills and poor inter-personal skills. It submits that she also objected to working beyond or outside of her fixed, regular hours.

It states that after Ms Cooney was recommended for appointment to the position she was initially hired as an agency worker pending approval for appointment to the staff of the Company from the Head Office in Italy. It submits that it employs 48 employees of whom 8 are Irish and of whom 37.5% (3 staff member) have been promoted during their period of employment with the respondent 3 are Polish of whom 33% (1 staff member) has promoted during her period of employment with the Respondent 33 are Italian of whom 33% (10 staff members) have been promoted during their period of employment with the Respondent. 4 are of other nationalities (Slovakian, Spanish, Turkish and Ukrainian) of whom 1 or 25% has been promoted during the period of their employment with the Respondent.

It submits that those statistics are indicative of a Company that does not discriminate between employees on the Race ground.

It further submits that by way of contrast with the Complainant another employee Ms Katarzyna Debska, a Polish national, was initially recruited as an Administrator in the Cash Management Section of the Finance Unit, undertook her ACCA exams and qualified as an accountant and was subsequently promoted to a Team Leader Position in the Finance Department.

It asserts that the Complainant has failed to establish facts that give rise to an inference of discrimination and asks the Court to decide this application as a preliminary matter.

Findings of the Court

The Law

The Act defines discrimination in the following terms

1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where —

(a)a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified insubsection (2)(in this Act referred to as the ‘discriminatory grounds’) which —

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned,

(b)a person who is associated with another person —

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

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

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

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

Section 8 of the Act prohibits discrimination in the following circumstances

8.— (1) In relation to—

(a) access to employment,

(b) conditions of employment,

(c) training or experience for or in relation to employment,

(d) promotion or re-grading, or

(e) classification of posts,

an employer shall not discriminate against an employee or prospective employee and a provider of agency work shall not discriminate against an agency worker.

Burden of Proof

The Act distributes the burden of proof between the parties in the following manner

85A.— (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 him or her, it is for the respondent to prove the contrary.

InA VocationalTraining Provider v A Workerthe Court stated

The test for applying that provision is well-settled in a line of decisions of this Court starting with the determination inMitchell v Southern Health Board[2001] E.L.R. 201. That test requires the complainant to prove the primary facts upon which he or she relies in seeking to raise an inference of discrimination. It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there was no infringement of the principle of equal treatment. If the complainant does not discharge the initial probative burden which she bears, her case cannot succeed.

The Court therefore must determine whether the complainant has established facts of sufficient significance to raise a presumption of discrimination that shifts the onus to the respondent to prove that there was no infringement of the principle of equal treatment.

The Facts

The Complainant has established that she is Polish, was employed by the Respondent and was not notified of or interviewed for the position that fell vacant after Ms McIntyre resigned her position. She has established that Ms Cooney was employed and was subsequently appointed to replace Ms McIntyre. She states that she was involved with others in assisting Ms Cooney understand the work of the Department. She states that it “is not known based on what criteria she was assessed suitable for the position of team leader given the fact that she was freshly-employed”.

The Respondent’s submission on this matter was available to the Complainant and she did not challenge the statement that it had engaged a recruitment company to identify a candidate suitable for appointment to the position.

She did say that she had expressed an interest in being considered for promotion in the past but offered no evidence in support of that assertion.

Assessment of the facts established

The Court has given careful consideration to the facts established by the Complainant viz that she is Polish, was an employee of the Respondent and was neither interviewed for nor offered the vacant position created by the departure of Ms McIntyre.

However, the Court also finds that the Complainant did not apply for the position or make any approaches to the respondent regarding the vacancy. Moreover, she has identified no person who was treated more favourably in such a manner as to infer discrimination on the Race ground. Her contention consists of nothing more than an observation that a vacancy existed, it was filled by a person who was of a different race and accordingly she may have been discriminated against on the race ground.

The Court finds that, taken together, these facts and observations do not raise an inference of discrimination on the race ground that is sufficient to shift the burden of proving compliance with the Act to the other side.

The Court finds nothing in the evidence before it that provides any support for such an inference.

Accordingly, the Court finds the complaint is not well founded, rejects the appeal, affirms the decision of the Adjudication Officer and determines accordingly.

Determination

The Court finds that the complaint is not well founded, rejects the appeal and affirms the decision of the Adjudication Officer.

Exclusion from the Flexi-Time Scheme

The Complainant originally worked full-time for the Respondent. When she returned from maternity leave she requested a shorter working week and she was accommodated in this regard. Her working hours were initially set at 9 am to 1 pm each day. She subsequently requested that they be altered to 8am to 12noon. This was accommodated also.

Staff working fulltime had access to a flexitime scheme. When the Complainant changed her hours of work she was excluded from that scheme. This exclusion was implemented in practice in 2009. It was formally confirmed in writing on November 2012 when her terms and conditions of employment were amended to state “We operate a flexi-time system which provides employees with a degree of flexibility in relation to their start and finish time. You are not at present covered by the flexi-time scheme”. This exclusion lasted until her employment terminated.

The Complainant complains that she was excluded from the scheme on the Race ground.

The Respondent denies that race had any role in her exclusion from the scheme. It submits that the scheme applied to full-time workers only and as the complainant worked part time she was not eligible to participate in the scheme. However, it submits that it accommodated the Complainant with time off for specified purposes as and when requested and the circumstances permitted.

Findings of the Court

It is common case that the Complainant was excluded from the flexitime scheme. However, the Complainant’s asserts that she was excluded from the scheme because of her race or that race played a part in that decision.

The Court finds that other than the two facts that she was excluded from the flexitime scheme and that she was Polish she established no facts that would suggest that her exclusion from the scheme was in any manner related to her nationality or race. It is settled law that, in circumstances such as this, the mere coincidence of nationality and a perceived detriment is not sufficient to ground a complaint of discrimination. Something more must be established that would suggest the possibility that there is a relationship between these two facts. In this case no such additional evidence has been adduced. Indeed, the evidence before the Court suggests that the fact that the Complainant worked part-time was the main reason for her exclusion from the flexitime scheme. And while it may be a dubious practice to exclude part-time workers from a scheme merely because they were part-time workers it does not amount to evidence on which to ground a complaint of discrimination on the Race ground.

For these reasons the Court dismisses the appeal and affirms the decision of the Adjudication Officer.

Determination

The Court dismisses the appeal and affirms the decision of the Adjudication Officer.

Equal Pay Claim

The Complainant submits that she was paid less than other named workers and that she was so paid a lower rate of pay because of her race.

In support of this complaint she submits that she noticed an open spreadsheet on a computer in 2007 which indicated that there was a large range of salaries in force in the Company and that she was not well paid by comparison with the salaries set out in the spreadsheet.

She states that she filed an EE3 form pursuant to section 76 of the Act. In it she sought the rates of pay of Ms A, Ms B, Ms C and Ms D all of whom worked in the Cash Management section of the Company. The Respondent replied in the following terms

“the rates of pay of individual employees and former employees are confidential and constitute personal data for the Data Protection Acts. Whilst the said information shall be disclosed at the hearing of any claim if so directed by the Equality Tribunal, it would be entirely inappropriate to divulge the said rates to another former employee [sic]. It is not accepted [that they did like work]”

The Complainant offered no other evidence to the Court.

The Respondent in its submission the Respondent stated that

Ms A was the appellant’s team leader and carried out a higher function than the Complainant who reported to her. It told the Court that she was paid €39,000 per annum.

Ms D is a Senior Administrator/Team Leader who occupies a higher post than the complainant and to whom she reported while in employment with the Respondent. It stated that Ms D was paid €38,000 when appointed rising to €41,000 p.a. at

the end of her probation.

Ms C was employed as an Administrator and undertook work similar to that of the Complainant. It submits that Ms C was paid €27,000 per annum which was €2,059 less than the full time equivalent salary paid to the Complainant.

Ms B was also employed as an Administrator. Her salary in 2009 was €28,000 and she worked full time. The complainant at that time was paid €14,529 for working 20 hours per week. It submits this amounts to €29,529 per annum. Ms B's salary increased to €30,000 per annum on 31 December 2010.

In cross examination the Complainant agreed with Counsel for the Respondent that both Ms A and Ms D were Senior Administrators/Team Leaders to whom she reported.

The Complainant offered no evidence to contradict the salaries paid to Ms C or Ms B. However, she did submit that they should be called in evidence by the other side so that they could be cross examined by her before the Court. The other side decided not to call any witnesses. At that point it was open to the Complainant to seek to subpoena witnesses but no such application was made to the Court.

The Complainant challenged the salary figures submitted by the Respondent but offered no basis upon which it mounted the challenge.

Having considered the evidence before it the Court finds that the Complainant has failed to produce any evidence that she was, on the race ground, or at all, paid less than any other employee who undertook the same or similar work. She has made assertions that do not and cannot amount to evidence within the meaning of the Act. Furthermore, she took no steps to seek to compel any witness to attend the Court to give evidence. Instead she sought to compel the other side to call witnesses that she could cross examine. The other side chose not to do so. Thereafter she made no application to the Court to seek a subpoena compelling them to attend at Court.

Determination

For these reasons the Court finds that the complaint is not well founded. The appeal is not allowed. The decision of the Adjudication Officer is affirmed.

The Court so determines.

Signed on behalf of the Labour Court



Brendan Hayes
LS______________________
31 August 2018Deputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Louise Shally, Court Secretary.