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-00013298-001

24/08/2017

 Background

1.1  The Respondent is an optical store .

1.2  Having previously worked in a branch in a respondent’s branch in the UK, the Claimant contacted the Respondent in early 2017 seeking employment. There were no roles available at that time. However, a temporary position for an O A subsequently became available to cover a period of maternity leave. The Claimant was interviewed and a verbal reference provided by her previous employer. The previous employer confirmed that the Claimant had been employed by it as an OA for 2 years. However, during that time the Claimant had only worked for around 8 months as she was on maternity leave for the remainder of the time. The Respondent had a concern as to whether the Claimant had enough experience to fulfil the role in question but decided to give her a chance nevertheless.

1.3  The Claimant commenced employment with the Respondent on 3 April 2017.

1.4  Notably, in the context of the Claimant’s allegations, this was less than 2 weeks after the terrorist attack on London’s Westminster Bridge.

1.4 There were issues with the Claimant’s performance almost immediately. The Respondent initially put this down to a normal settling in period. However, after approximately two weeks it became apparent that the Claimant lacked crucial skills which were necessary to carry out her role. Ms.MMc, the Respondent’s Retail Director, spoke to the Claimant about her performance. Ms McM informed the Claimant that additional training would be provided to her. Ms McM assigned the Claimant to two senior members of staff within the store for her to shadow for a 4 week period. The purpose of this exercise was to provide additional support to the Claimant and to allow her develop the specific skill set required for the position. The Claimant was also advised at this time that Ms McM would monitor the situation on an on-going basis and that the Claimant’s continued employment would be subject to the Claimant showing a substantial improvement in her performance.

1.5 A further review was carried out after 4 weeks. It was evident at that point that the Claimant’s performance had not improved. As such, the Claimant’s employment was terminated on 23 May 2017.

1.6 The Claimant contacted Ms McM approximately 3 weeks after the termination of her employment requesting a reference. Ms McM informed the Claimant that she would only provide a reference if it was not for an Optical Assistant role. The Claimant confirmed that the reference was for a sales position with a retail clothes shop. As that was the case, Ms McM provided the Claimant with a positive reference.

2 The law

2.1 The Claimant alleges that she has been discriminated against on grounds of religion and that she was dismissed for discriminatory reasons contrary to the Employment Equality Acts, 1998 to 2015 (the “EEA”). This is denied by the Respondent.

2.2 Section 6(1) of the EEA provides that:

“discrimination shall be taken to occur where….. 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 in subsection (2) in this Act referred to as the “discriminatory grounds” …….

2.3 Section 6(2) of the EEA provides that:

“as between any two persons, the discriminatory grounds are, inter alia,…

(e) that one has a different religious belief from the other, or that one has a religious belief and the other has not ( …the “religious ground”); …”

2.4 In order to succeed in her claim for discrimination the Claimant must demonstrate that she has suffered less favourable treatment than a comparable employee on the religious

ground. It is respectfully submitted that the Claimant has not done this and that her claim must fail.

3 Burden of proof

3.1 Section 85A of the EEA sets out the burden of proof which applies to claims of discrimination. It provides, in effect, that where facts are established by a claimant from which discrimination may be inferred, it shall be for the respondent to prove the contrary.

3.2 In the case of Mitchell v The Southern Health Board [1990] ELR 120, the Labour Court considered the extent of the evidential burden which the claimant must discharge before a prima facie case of discrimination can be made out. It stated that the claimant must:

“establish facts from which it can be presumed that the principle of equal treatment has not been applied to them. This indicates that a Claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful 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.”

3.3 The Labour Court went on to hold that a prima facie case of discrimination is established if the claimant succeeds in discharging that evidential burden. If the claimant succeeds, the respondent must prove that s/he was not discriminated against. If the claimant does not discharge the evidential burden, the claim cannot succeed.

3.4 Numerous decisions (including Vaiciulis v Securezone Manhour Ltd (in Liquidation), Dec-E/2010/014 and Rimantas Kazdailis v Ballinard Transport Ltd DEC-2013-165) refer to a key recommendation of the Labour Court (Arturs Valpeters v Melbury Developments [2010] 21 E.L.R. 64), in which the Court concluded, whilst examining the circumstances in which the probative burden of proof operates, that -

“Section 85A of the Acts 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.” (emphasis added)

3.5 While that case referred to race, the general principle stated by the Labour Court in considering the provision of Section 85A remains relevant where it stated that “such an inference could only be drawn if there was evidence of some weight from which it could be concluded that persons of a different race or nationality were or would be treated more favourably. All that has been proffered in support of that contention is a mere assertion unsupported by any evidence.”

3.6 In this case, the Claimant alleges that the Respondent was concerned about public sentiment following a terrorist attack in Manchester and that her dismissal was a knee jerk reaction as she was clearly identifiable as a Muslim by the fact that she wore a headscarf.

3.7 It is submitted that this is an entirely subjective viewpoint of the Claimant, not supported by evidence and which in no way satisfies the requirement for a prima facie case of discrimination to be proved by the Claimant as set out above. The mere coincidence that the Claimant was dismissed the day after a terrorist attack in Manchester is not sufficient to shift this burden of proof from the Claimant to the Respondent. As set out above, the Claimant simply lacked the tools, skill and knowledge to fulfil the role she had been appointed into.

4 Conclusion

4.1 The Respondent takes grave issue with the allegation that the Claimant was ever treated less favourably because of her religion. In fact, it would argue that the opposite was the case. For example, at one stage the Claimant requested that a quiet room for prayer be made available to her which the Respondent facilitated.

4.2 To be absolutely clear, the Claimant was dismissed on the basis of poor performance. Any personal characteristics of the Claimant had no bearing on the decision to dismiss her.

4.3 It is respectfully submitted that the Claimant’s complaint should be dismissed and/or a finding made that the Claimant has failed to provide evidence of any facts from which discrimination can be inferred.

4.4 The Respondent reserves the right to adduce any further evidence as may be appropriate or as necessary in any further submission or hearing of this matter.

In her direct evidence Ms.McM stated that she wanted the claimant to sell glasses on the floor and stated that in their store all staff multitasked. She asserted that the claimant was nervous with customers , did not interact with them , that she kept shadowing her colleagues and she spoke to her about these concerns. She stated that the claimant was not in a trainee position   and that she needed to be more interactive with customers. She stated when she spoke to the claimant about this she agreed to continue shadowing her colleagues with a view to developing her skills. She stated that she was “getting it from other members of staff”   about the claimant’s performance. She acknowledged that the claimant was good at contact lenses and could assist to a very high standard , that she could pretest but she wanted an optical assistant. She asserted that the claimant had to be prompted all the time. Ms.McM stated that the claimant pleaded with her for a good reference   and as she was going to a retail job , she was happy to give her a reference on that.

Ms.McM asserted that the claimant showed no initiative and despite the training she still lacked ability .

It was submitted that the comparator proposed by the claimant was not an appropriate comparator as she was the daughter of the other director and had worked during the summer months over the last 4 years.It was submitted that the burden of proof had not been discharged and that the claimant had to show evidence of discrimination and failed to do so.

Under cross examination , Ms.McM accepted that she had made no notes of the purported reviews with the claimant and acknowledged that this would have been good practise. She stated that the final review took place the last day of the claimant’s employment .She went on to say that the decision to terminate the claimant’s employment was taken during the week commencing the 20th.May 2017 – she contended that the other Director returned from travelling on the 19/20th.May – she advised him that it was not working out with the claimant – that she lacked enthusiasm and interaction and “he agreed”.She accepted the claimant’s name badge and uniform were ordered the day before the employment was terminated – she said the order had been put through by another staff member.

She gave an account of her phone call with the claimant about a reference – she asserted that the claimant was desperate to get a job that she asked her was it for an optical assistant – she stated she now regretted giving the reference. She enquired why the claimant wanted a second chance and responded “ you do your best for the first few months”.

It was submitted that the claimant had admitted that she had to shadow people – the only explanation for this had to be performance. Towards the end of the hearing Ms.McM asserted that the claimant was shadowing staff for the entire 7 weeks of her employment when most staff only shadowed for 2 weeks.

Ms.McM went on to say that the 2 managers in the store were aware that the claimant’s employment was to be terminated.

Ms.McM acknowledged that the claimant was offered a one year contract which was verbally agreed – she was not issued with a written contract.

Ms.McM acknowledged in her evidence that performance reviews are normally carried out after 3 months. She stated the claimant did not have the skills for the job and that there was more time spent on training her than anybody else.

Ms.McM stated that she had a meeting with the shop managers about the claimant’s performance – the other Director was absent from the meeting – and it. was agreed that the claimant was not performing. She had no records of the meeting.

The company had recruited over 30 staff from the opening of the shop – Ms.McM stated that they had never previously employed a Muslim worker – another worker – who was a Scottish national - with customer interaction problems was let go approx. 10 years ago with less than 3 months service.

It was submitted that the claimant’s case was based on mere assertions and this did not meet the test set out in Melburry.

Ms.McM stated that the shop was very busy , that shadowing was adhoc , that the claimant shadowed for 2 weeks and “ definitely for a few weeks after that”.

I have reviewed the evidence presented at the hearing and noted the respective positions of the parties.

Section 85a of the Act requires that claimants discharge a burden of proof in equality cases …..

“… 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”. As set out by the respondent in their invocation of Melbury v Valpetters (EDA 917), the Labour Court has already determined that mere speculation or assertions , unsupported by evidence , cannot be elevated to a factual basis upon which an inference of discrimination can be drawn.The burden of establishing the primary facts is placed squarely on the complainant and the language of Section 85A admits no exceptions to this evidential rule.

I have taken account of the following in reaching my conclusion –

The claimant was the only non Muslim that ever worked in the respondent’s store.

She had previous experience as an Optical Assistant in the UK all be it on pretesting as opposed to dispensing.

Only one other staff member had been let go with under 3 months service   - this involved the dismissal of a Scottish national and took place 10 years ago.

It was accepted by the respondent that reviews would normally take place at the end of 3 months from the date of commencement.

No records of any reviews have been presented to support the respondent’s contention of ongoing reviews.

No records of any performance deficits on the part of the claimant were presented.

The claimant’s evidence that she was never advised of any shortcomings in her performance was credible and consistent throughout the hearing.

While there is a complete conflict of evidence between the claimant and Ms.McM in relation to the phone call regarding the reference , it is a fact that the claimant was given a positive reference for another retail outlet where the alleged skills deficits outlined by the respondent – i.e. interaction with customers – would be an essential skill.

The evidence of Ms.McM was inconsistent – specifically in relation to the matter of the duration of shadowing , the involvement of other staff in reviewing the claimant and most significantly in relation to the date on which the decision to dismiss was taken.She stated that she and the other Director met the week commencing the 20th.May and decided to let the claimant go – no record or minute of this meeting was presented .She asserted that other managers attended a meeting to discuss the claimant’s performance on an unnamed date but no minutes or records of same were available.In her direct evidence Ms.McM stated that the claimant’s final review (unilateral) took place on the date of dismissal .

I note the respondent’s handbook provides as follows in relation to probation –

“ Like all of your team when they started , you will have a probationary period.This is a time for you to learn what will be expected of you and to determine whether a career at ………… is right for you .It will also allow the store to review how you are getting on .Your performance will be reviewed regularly and you will be supported throughout this time.Your manager or store director will agree these review dates with you ……………..”

The claimant’s evidence that no review took place with her was credible and compelling.

It was not disputed that when the claimant attended work as normal on the 23rd.May 2017 , the work rota for the following week clearly showed she was scheduled to work for the week ahead – name badges and uniforms had been ordered for her the previous day.The claimant was dismissed on the 23rd.May 2017 , the day after the Manchester attack.

While taken individually , these matters may not be determinative , I find that taking the entirety of the   foregoing into account I have concluded that the claimant has established a prima facie case of discrimination on the grounds of religion  and I find   that   the respondent has failed to rebut it.

In EDA 1322 , the Labour Court determined that where a prima facie case is made out , the onus shifts to the respondent to prove the absence of discrimination.The Court went on to state that this requires the respondent to show a complete dissonance between the gender of the complainant and the impugned act or omission alleged to constitute discrimination. In this case the respondent has failed to show a complete dissonance between the religion of the claimant and her dismissal.

The Court continued as follows in considering the nature of discriminatory treatment

“Thus, in Wong v Igen Ltd and others[2005] EWCA Civ 142, (a decision of the Court of Appeal for England and Wales) Peter Gibson L.J. pointed out that where the Respondent fails to show that the discriminatory ground was anything other than a trivial influence in the impugned decision the complaint will be made out. In all discrimination cases the Court should be alert to the fact that the motive or reason for an impugned decision may be conscious or subconscious. In Nagarajan v London Regional Transport[2001] UKHL 48, Lord Nicholls of Birkenhead said the following: -

·         I turn to the question of subconscious motivation. All human beings have preconceptions, beliefs, attitudes and prejudices on many subjects. It is part of our make-up. Moreover, we do not always recognise our own prejudices. Many people are unable, or unwilling, to admit even to themselves that actions of theirs may be racially motivated. An employer may genuinely believe that the reason why he rejected an applicant had nothing to do with the applicant's race. After careful and thorough investigation of a claim members of an employment tribunal may decide that the proper inference to be drawn from the evidence is that, whether the employer realised it at the time or not, race was the reason why he acted as he did. It goes without saying that in order to justify such an inference the tribunal must first make findings of primary fact from which the inference may properly be drawn”.

I am satisfied on the basis of the evidence presented that the dismissal of the claimant in advance of the standard 3 month review constituted less favourable treatment on the grounds of religion and that the claimant’s   non Muslim colleagues were not the subject of such treatment.

Accordingly I am upholding the complaint. I require the respondent to pay the claimant €12,000 compensation.