Complainant

Respondent

Parties

Ivelina Belcheva

Npd Group Inc

Representatives

Ivelina Belcheva.

Siobhan McGowan, Alastair Purdy & Co. Solicitors

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-00023658-001

30/11/2018

The Complainant was employed by the Respondent on an initial fixed term contract, the first of which was dated 26th June 2017 and was for a period of 6 months (ending 31st December 2017). This contract was then extended until 29th June 2018 and the Complainant signed up to that extension in January of 2018. The contract was again extended to 31st December 2018 and that final extension was signed up to by the Complainant on 14th June 2018.

This complaint was received by the Workplace Relations Commission on 30/11/2018.

The following is the content of a letter received from the Complainant who has confirmed that these are the facts of her complaint.

“For a long time, I was afraid to speak out as I was afraid of losing my job but it is what was happening on a regular basis.

Since I moved to a different department in my work I felt that I was being treated differently as opposed to my other co-workers. I was brought into rooms every week and told not to ask questions and to do the work on my own. The other co-workers were never brought in.

In one of these meetings my co-ordinator told me “Your first language is not English”, you do not understand perhaps. I was left feeling very humiliated and embarrassed.

Ever since she started she would come over to me and explain or say something she would always speak loudly and end each sentence with “Does that make sense”, this has never happened when she has explained things to my other co-workers.

On most occasions when I asked for clarification she would bring me into a room and tell me not to ask questions. When any other worker asked a question, she would explain things to them in a very quiet and polite voice.

On one occasion when I asked for an opinion she replied loudly “Did you ask your co-workers first”, on occasions when my co-workers asked questions she would reply to them in a very polite manner.

At one of the numerous meetings with the co-ordinator she told me not to use much internal communication tool. I made it clear that I do not overuse and asked why was this only being said to me and not to the other co-workers.

Very recently when I asked if I could eave early as my daughter had an x-ray appointment, she refused to let me leave early in times because we were very busy in that production week. I had to re-schedule my daughters x-ray three times, at the same time she granted one of my co-workers two days off.

There has been constant discrimination against me, I feel very humiliated and embarrassed.

The Complainant was employed by the Respondent on an initial fixed term contract, the first of which was dated 26th June 2017 and was for a period of 6 months (ending 31st December 2017). This contract was then extended until 29th June 2018 and the Complainant signed up to that extension in January of 2018. The contract was again extended to 31st December 2018 and that final extension was signed up to by the Complainant on 14th June 2018. the Complainant was initially employed by the Respondent in their Toys Department in data classification however as the Complainant herself felt that this was not a long-term ambition for her and indeed, as she had previous employment experience in the area of quality she was transferred into the Respondent’s data quality department dealing with the areas of Beauty.

Following the transfer of the Complainant into the Quality Department, it became apparent to the Complainant’s immediate Line Manager, being Ms O’C that the Complainant appeared to be encountering difficulties in carrying out her work. In line with her duties as line manager, Ms O’C would speak to the Complainant on a one to one basis in relation to these performance issues and indeed Ms O’C’s own Manager, Ms RM was present at one of these meetings.

Any co-worker who was found to be experiencing any performance issues or work issues would be spoken to by their line manager which of course would take place by way of one to one meeting in a private surrounding. The allegation therefore, made by the Complainant that she was treated differently to her co-workers is untrue.

On 18th September 2018 a meeting took place between the Complainant, Ms O’C and Ms RM being Ms O’C’s Manager. The meeting was in relation to work performance issues that Ms O’C and Ms M wished to highlight and bring to the Complainant’s attention with a view to offering her support to improve in those areas. During that meeting, the Complainant highlighted that she felt that Ms O’C took a different approach to other team members when they sought explanation on a work task.   The Complainant was informed that this was not the case wherein she was also put on notice and the reason for the face to face meetings was to set out and discuss the ongoing issues and concerns with a view to furnishing full support to the Complainant going forward. As a result of this meeting, a decision was made by Ms RM to end what was known as “spark messaging” which was in essence instant messaging within the team. It was decided that due to the small nature of the team, there would be no further spark messaging and all interactions in relation to work performance would be by face to face communication and this was notified to all parties by way of email.  

The Complainant in her complaint form appears to believe that she was always brought into a private room whereas her co-workers were not. The Respondent categorically refutes this allegation and confirms that when dealing with an employee on a work performance issue, it was standard practice to speak to that employee in private as opposed to in front of fellow workers.

On 22nd June 2018 Ms O’C had a further one to one meeting with the Complainant in a private meeting room in which Ms O’C sought clarification from the Complainant as to why the Complainant sought her line manager to proof read and email which emanated in the same format on a weekly basis. Due to the recurrent nature of this request, the Complainant Manager sought to understand if the Complainant understood the reason for issuing the email and how it related to the work situation. She stated that she was trying to understand if the Complainant did not have an understanding of the purpose of sending the email or if instead, it may be a language barrier. Ms O’C agrees that she may have used the line to the Complainant that she understood that English was not her first language and sought confirmation as to whether this had any impact on her seeking her manager to proof read the email every week. As cited above, this was a private meeting between Ms O’C, as the Complainant’s line manager, with the Complainant. It was in the manner of an informal performance meeting with regard to the ongoing need of the Complainant for her manager to supervise certain areas of her work. At no point during that meeting did the Complainant highlight any issues or concerns or state that she felt discriminated against, humiliated or embarrassed.

On 29th June 2018 a further meeting took place between the Complainant and her manager in order to seek feedback on a task that the Complainant was responsible for.   While discussing that topic, the Complainant interrupted her manager to refer to the meeting of the previous week and the comment by her manager that English was not the Complainant’s first language. Ms O’C explained the context in which this had been raised which was merely to ascertain if it was a language issue or whether or not there was instruction required for the Complainant in relation to the purpose of the email. Ms O’C apologised to the Complainant if she had taken this in another way but assured her that this was not its intention.  

On 2nd July 2018 the Complainant sought to speak to Ms O’C in relation to the meeting of 29th June 2018 and the Complainant advised her manager that having thought about same, she understood what was being said to her regarding the “language issue” and agreed that the feedback was correct.

The Complainant in her complaint form alleges that since that date, her manager would explain matters to her in a very loud voice and end the sentence with the phrase “does that make sense”. The Complainant alleges that this phrase has never been used when she explains matters to other co-workers. Ms O’C will give evidence that this is a regular phrase she would use in the context of explaining matters to the group which she is managing.

As clearly set out above, despite the allegation raised by the Complainant that it is only she who is brought into a private room when she asks questions whereas others are explained at their desk, this is not the case. It is the line manager’s policy to have one to one private meetings with any employee who appears to be struggling with any area of their work or is asking a question that cannot be dealt with succinctly at their desk.   This standard procedure in dealing with all employees had been clearly set out above and evidence is attached to this submission.

Another allegation raised by the Complainant is that her manager spoke loudly to her when she raised a query and asked that she “ask your co-workers first”. She further alleges that when co-workers ask a question she merely responds to them in a polite manner. The Respondent and indeed the line manager firmly rebut this allegation and state that it is a direction given to all employees and team members that as opposed to each team member potentially asking the same question, that they firstly review any documentation (e.g. notes or standard operating procedures) to seek out the answer before asking their team members.   If they are unable to find the answer, they can ask colleagues and if they cannot resolve the question/issue they are then to seek the assistance of their manager. This policy of the Respondent was clarified in an email to the Complainant and her work colleagues by Ms RM, Operations Manager of the Respondent in an email dated 23rd May 2018.

The Complainant raises via her complaint form that she had sought to take a period of annual leave in order to accommodate an x-ray appointment for her daughter. She goes on to allege that she was refused leave for this appointment, but other co-workers were given time off. Again, this allegation in the format in which it is raised by the Complainant is vehemently denied. All annual leave / time off requests of team members are discussed and approved or declined in advance. Ms O’C the Complainant’s direct line manager has a recollection of a somewhat informal conversation with the Complainant where the Complainant referenced an x-ray appointment. Ms O’C states that she has no recollection of the Complainant highlighting that this was an urgent or important appointment. Ms O’C believes that they discussed dates for which the Complainant could take leave in order to attend a said x-ray appointment at her desk, as the date being proposed was not suitable for business requirements. Ms O’C was never under the apprehension that this was an urgent appointment.   If it had been brought to the Respondent’s attention that this was in fact an urgent appointment it would have been accommodated. The Respondent holds no documentation being email or note from the Complainant in relation to this appointment request.

The Respondent has not in any manner discriminated against the Complainant in relation to her race or any of the other applicable grounds and no juncture has the Respondent conducted itself in order to leave the Complainant humiliated and embarrassed and the issues referred to in the complaint form are merely that of a manager dealing with a team member in relation to work issues and seeking to point out difficulties and offering coaching and assistance. This coaching and assistance was offered to all team members who required same as is the norm in any employer/employee relationship.

The Complainant’s complaint form refers to the “last date of discrimination” as being 8th November 2018. The Respondent is not aware of any act which took place on this date although if the Complainant is referring to her request for time off to attend an appointment, we confirm that this allegation has been dealt with and fully rebutted in the paragraphs above.

Respondent’s Legal Arguments

As set out at the start of this Submission we contend that the Complainant has brought her case before the Workplace Relations Commission under the Equal Status Act.   As the Respondent as the Complainant’s employer it did not offer the services dealt with by this piece of legislation and in this regard we confirm that in fact there is no valid claim before this forum against the Respondent.

Without prejudice to that argument should the Adjudicator allow the Complainant to “reformulate” her complaint to bring same under the Employment Equality Acts, then the Respondent vigorously refutes the Complainant’s complaint that she was discriminated against under Section 77 of the Employment Equality Acts 1998 to 2001.   The Complainant appears to allege that she has been discriminated against on foot of her race.

Firstly, the Complainant must be put on full proof of all matters raised in her Submission and we confirm that the Respondent’s history as recited about clearly rebuts all arguments made.

Burden of Proof

The test as set out in Section 85(A) of the Employment Equality Acts provides that it is for the Complainant to establish facts from which it may be presumed that discrimination has occurred.

In this regard, there have been a number of significant cases the most of significant of which is Southern Health Board v Mitchell [2001-ELR201].   This case was expanded upon in the HSE case of North Eastern Region v Sheridan [EDA 0820]. In that case, the Labour Court declared:

1.       The Complainant must prove the primary facts on which he or she relies in alleging discrimination.

2.       The Court or Tribunal must evaluate those facts and be satisfied that they are of sufficient significance in the context of the case as a whole to raise a presumption of discrimination.

3.       If the Complainant fails at stages 1 or 2 he or she cannot succeed. However, if the Complainant succeeds at stages 1 and 2 the presumption of discrimination comes into play and onus shifts to the Respondent to prove on the balance of probabilities that there is no discrimination.

It is a prerequisite that there are some primary facts on which the Complainant must rely to ground her allegation of discrimination. These cannot be mere speculation or an assertion unsupported by evidence. Accordingly, we put the Complainant on full proof that an act of discrimination within the terms of the 1998 Act has actually occurred. In this regard, we require an answer to the following questions:

1.       On what basis did the Complainant assert that she is entitled to pursue a claim under the Employment Equality Acts?

2.       On which primary facts is she relying in alleging discrimination?

Direct Discrimination

Without prejudice to above, by virtue of section 6 (1) (a) of the Employment Equality Acts 1998-2001 in order for an individual to establish that they were subjected to direct discrimination by their employers, they must demonstrate that they were treated less favourably than another person is, has been or would be treated in a comparable situation and Section 6 (Sub-section 2) states that this must be shown as between any two persons the discriminatory grounds (and the description of those grounds for the person of this Act) are :

h. That they are of different race, colour, nationality or ethnic or national origins. In addition to this, the Complainant needs to show a cause or link or connection between their race and alleged discrimination.

Comparator

Firstly, the issue of a Comparator needs to be established which in itself is a difficult hurdle for the Complainant. The definition specifically demands that a person to whom the Complainant is comparing themselves must be in comparable situation. In London Borough of Lewisham v Malcolm [2008] UKHL43, [2008 IRLR 700] the House of Lords held that if an employer would have treated the un-disabled person in the same way as a disabled person had been, there would be no disability related discrimination.   This follows through in a case such as this wherein the Respondent fully contends that it treats all employees in the same manner.

We confirm that the Complainant has made no such election and has produced no evidence of any maltreatment of her or her conditions of employment.

In this regard, it is submitted that both the Employment Equality Acts and the Directive provide that discrimination can only occur where “a person is treated less favourably than another person is, has been or would be treated in a comparable situation”. The Respondent respectively submits that the Complainant was not treated differently or less favourable than other person would be in a comparable situation.   Again, we put the Complainant on strict proof of forwarding a Comparator and establishing how the Complainant was treated differently to that Comparator on grounds of race.

Causal Link

Secondly to sustain a case of direct discrimination the Complainant needs to establish a causal link between her race and any discriminatory act. It is extremely unclear as to how the Complainant feels she was discriminated against by virtue of her race and it is the Respondent’s contention that the facts set out in the Complainant’s claim form do not amount to a discriminatory treatment. The Respondent merely acted in accordance with standard industrial norm in discussing work / performance issues with an employee and doing so in a private setting. All other team members who required such coaching or feedback sessions, received the same format of treatment.

It is therefore submitted that the Complainant cannot establish any causal link between any alleged discriminatory act as the said act or acts do not fall within the definition under the Acts.

I have considered this complaint at some length.

In evidence the co-ordinator has stated that she often ends sentences with “does that make sense” and it is not the case that the Complainant is the only one she has said this to.

In relation to being brought into a meeting room it was explained by the co-ordinator that she was trying to be helpful and making sure that the Complainant understood what was being said to her.

The Representative for the Respondent has pointed out:

Burden of Proof

The test as set out in Section 85(A) of the Employment Equality Acts provides that it is for the Complainant to establish facts from which it may be presumed that discrimination has occurred.

In this regard, there have been a number of significant cases the most of significant of which is Southern Health Board v Mitchell [2001-ELR201].   This case was expanded upon in the HSE case of North Eastern Region v Sheridan [EDA 0820]. In that case, the Labour Court declared:

1.       The Complainant must prove the primary facts on which he or she relies in alleging discrimination.

2.       The Court or Tribunal must evaluate those facts and be satisfied that they are of sufficient significance in the context of the case as a whole to raise a presumption of discrimination.

3.       If the Complainant fails at stages 1 or 2 he or she cannot succeed. However, if the Complainant succeeds at stages 1 and 2 the presumption of discrimination comes into play and onus shifts to the Respondent to prove on the balance of probabilities that there is no discrimination.

It is a prerequisite that there are some primary facts on which the Complainant must rely to ground her allegation of discrimination. These cannot be mere speculation or an assertion unsupported by evidence. Accordingly, we put the Complainant on full proof that an act of discrimination within the terms of the 1998 Act has actually occurred. In this regard, we require an answer to the following questions:

1.       On what basis did the Complainant assert that she is entitled to pursue a claim under the Employment Equality Acts?

2.       On which primary facts is she relying in alleging discrimination?

In this instant case the Complainant has not discharged the burden of proof by showing that a prima facie case existed and accordingly the complaint as presented must fail.

The complaint is not well founded.

As outlined above.

Employment Equality.