Complainant

Respondent

Anonymised Parties

A Security Officer

A Security Company

Representatives

Self-Represented

ESA Consultants ESA Consultants

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00014750-001

03/10/2017

The issue concerns a Security officer employed from 5th July 2017 to the 29th September 2017. The Officer alleged that his employment was not continued /he having been dismissed during the probationary period on the basis of Discrimination against him on the grounds of Age, Race, Conditions of Employment, Discriminatory Dismissal, Dismissal for Opposing discrimination and other Discriminatory Grounds.

The Complainant alleged Discrimination (Discriminatory Dismissal) on the Grounds set out below.

Age: He was discriminated against because of his age. He was a man of mature years and younger men were preferred.

Race: He was discriminated against because of his Race. He is a Latvian national and other employees of different Nationalities were treated much more favourably especially in the allocation of night/day shift rosters.

Conditions of Employment: The Complainant alleged that he was effectively placed on permanent night shifts unlike other colleagues who had a mix of days/nights.

Discriminatory dismissal: He was dismissed for Discriminatory reasons.

Opposing Discrimination: In his communications with the Respondent he had clearly opposed Discrimination.

Other grounds: He was subject to delays in a discriminatory fashion in getting his Uniform, his getting a formal Written Contract and the processing of his payroll.

In addition to his Complaint form the Complainant furnished copies of shift rosters and e mail traffic with the Respondent. He made a lengthy Oral submission.

The Respondent opened their Defence by reference to Section 85 of the Employment Equality Act 1998 and by reference to precedents from the Labour Court where the need to establish a factual basis of “Sufficient significance” to maintain a prima facie case can be established.

It was their strong contention that no factual basis had been established and there was in fact no prima facie case made in any shape or fashion. Accordingly, the case, on the alleged grounds of Employment Equality and alleged Discrimination, must be dismissed.

The Complainant was employed on a probationary basis and his probation was not continued. It was felt that after a review of his initial period of employment he was not suitable for a long-term positon with the Company.

This was a decision taken without any discriminatory overtones of any shape or form. Evidence was presented of other probationary employees, of Irish Nationality, who were also not confirmed in long term employment.

The Complainant was furnished with a Contract of Employment which he signed for on the 30th August 2017. The delay in providing was regretted but was within the two-month period required by Legislation. It was an administrative matter with no discriminatory overtones.

On the specific Grounds alleged the Respondent replied as follows

Age: The Respondent employs a wide range of age groups from 18 to 75 years of age. No suggestion of Age discrimination can exist in the Company’s employment practices.

Race: The Respondent employs a wide range (circa 700) of nationalities from across the European Union and beyond. No question of Racial discrimination exists.

Conditions of Employment: The Complainant alleged that he was effectively placed on permanent night shifts unlike other colleagues who had a mix of days/nights. No question of Discrimination exists here. Shift patterns are not driven by Discriminatory issues.

Discriminatory Dismissal: He was dismissed for Discriminatory reasons. This cannot apply. His employment was not continued in keeping with the Respondent’s probationary policy.

Opposing Discrimination: In his communications with the Respondent the Complainant alleged that he had clearly opposed Discrimination. There is no evidence presented of this and the Responded could not answer without specifics.

Other grounds: He was subject to delays in a discriminatory fashion in getting his Uniform, his getting a formal Written Contract and the processing of his payroll. There was absolutely no evidence of Discrimination in any of these matters. His payroll had been the subject of communication with the Payroll office and they had helped him as far as possible. Emergency tax and Tax certificates matters are a Revenue issue. Delays in the issue of his Uniform were denied and in any event, were not out of the ordinary in a 700 plus employee Company.

In overall summary, the Complainant was employed initially to do night shifts, this was clearly explained to him at the start of his employment and there was no question of a Racial or Nationality or Age discrimination is this. It was felt that he was not suitable for the role offered in the Company and, in keeping with normal practice, his employment was not made permanent.

3:1         The Legal Position and the Burden of Proof

In considering this case the Burden of Proof requirements to sustain a Discrimination claim are crucial.

It is now well accepted law that the first requirement for a successful claim lies in establishing a prima facie case.

In this regard, I consider that it is appropriate for me to firstly consider the Labour Court’s comments in examining the circumstances in which the probative burden of proof applies in employment equality cases. In the case of Dyflen Publications Limited and Ivana Spasic (ADE/08/7) the Court adopted the approach of Mummery LJ in Madrassy v Nomura International plc [2007] IRLR 246, and stated that

“… the court should consider the primary facts which are relied upon by the Complainant in their proper context. It also indicates that in considering if the burden of proof shifts the court should consider any evidence adduced by the Respondent …”.  

The Labour Court continued

“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.”

3:2       Consideration of the evidence presented.

In the case in hand the absence of any factual proof of Discrimination or Inference of Discrimination (as defined by the Employment Equality Act 1998) as alleged, either direct or indeed indirect, was clear cut. This was largely admitted by the Complainant in his oral comments.

He was aggrieved by doing night shifts and was unhappy with the attitude of the Respondent to his attempts to query the rosters.

The Respondent Contracts manager Mr. LD gave direct oral evidence. He had initially interviewed the Complainant. He had explained the shift pattern system to him and emphasised that night work was a major part of the job. The Complainant could have been facilitated in the patterns of night duty. The roster did not automatically have to be four nights in a row. The Respondent had a Grievance procedure which the Complainant could have used to pursue this issue. No Grievance under the Procedures was ever lodged by the Complainant. The Respondent has a small turnover of Security officers during the probationary period and this is perfectly normal in the Industry. No discrimination arises here as the Probationary issue impacts on all Officers irrespective of origins or age. Having heard in detail the evidence of the Contracts Manager I found his statements to be credible.

3:3     Summary Conclusion

Having considered all the evidence, both oral and written from the parties, I have to find that the claim of Discrimination and Discriminatory dismissal on the Grounds alleged lacks any direct or indeed indirect factual basis. No prima facie case exists.

The claim is dismissed.

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00014750-001

Claims of Discrimination on grounds of

·       Age

·       Race

·       Conditions of Employment

·       Discriminatory dismissal

·       Opposing discrimination

·       Other grounds

are dismissed for want of any prima facie case being established.