Complainant

Respondent

Parties

Andres Romera

Waterford Institute of Technology

Complainant

Respondent

Anonymised Parties

Not applicable

Not applicable

Representatives

The Complainant attended the Hearing in person and was not represented  

Mr. Tom Mallon B.L. on the instructions of CC Solicitors

Act

Complaint Reference No.

Date of Receipt

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

CA-00028325-001

10/05/2019

The Complainant, who is a Spanish national, has been employed by the Respondent as a Languages Lecturer since 1 September, 2004. The Complainant claims that he was subjected to discriminatory treatment and victimisation by the Respondent on the race ground contrary to the Employment Equality Acts. He further claims that he had been subjected to an ongoing series of discriminatory acts in the period from 2010 until the date of referral of the instant complaint on 10 May, 2019.

Preliminary Issue in relation to jurisdiction

The Complainant contends that the alleged acts of discrimination that occurred prior to the cognisable period of his complaint, namely 11 November, 2018 to 10 May, 2019, should be considered as part of a continuum of discriminatory events. The Respondent submits that events outside of the cognisable period for the instant complaint are out of time and that I do not have any jurisdiction to consider such instances of alleged discrimination.

The time limits which govern the referral of complaints under the legislation as set out in Section 77 of the Acts.

Section 77(5)(a) of the Acts provides: -

“(a) Subject to paragraph (b), 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 occurrence of the discrimination or victimisation to which the case relates or, as the case may be, the date of its most recent occurrence.”

Section 77(6A) provides: -

“For the purposes of this section —

(a) discrimination or victimisation occurs—

(i) if the act constituting it extends over a period, at the end of the period”.

The effect of these provisions is that the Complainant can only seek redress in respect of occurrences during the six-month period prior to the date on which the claim was received by the WRC unless the discrimination in issue is part of a continuum of events. In considering this matter, I have taken note of the case of County Cork VEC –v- Ann Hurley EDA1124 where theLabour Court considered the issue as to whether events which occurred outside the cognisable period for the complaint made could be considered as part of a regime or continuum and thus within the jurisdiction of the Court. It was held by the Labour Court that: “Subsection (5) and subsection (6A) of s.77 deal with different forms of continuing discrimination or victimisation. Under subsection (6A), an act will be regarded as extending over a period, and so treated as done at the end of that period, if an employer maintains and keeps in force a discriminatory regime, rule, practice or principle which has had a clear and adverse effect on the complainant (Barclays Bank plc v Kapur IRLR 387). This subsection would apply where, for example, an employer maintains a discriminatory requirement for access to employment or promotion”. The Labour Court also held in this decision that: “Subsection (5) of s.77 deals with a situation in which there are a series of separate acts or omissions which, while not forming part of regime, rule, practice or principle, are sufficiently connected so as to constitute a continuum …… in order for acts or omissions outside the time limit to be taken into account there must have been acts or omissions of victimisation (or discrimination) within the time limit…… their admissibility is dependent upon some link being established between the occurrences outside of the time limit, and those inside the limitation period, which makes it just and reasonable for them to be treated as part of a continuing act upon which the Complainant can rely. ”

It is clear from the foregoing that the Acts allow for circumstances in which acts of discrimination that occurred outside the normal time limit can nonetheless be relied upon provided the claim is submitted within the six months of the point in which the discrimination ended. In the circumstances, it is necessary for me consider if the incidents of alleged discrimination relied upon by the complainant can be regarded as part of a continuing act of discrimination for the purpose of Section 77(5) of the Act. In that regard, applying the principles identified above to the instant case, it appears that the admissibility of the claim in so far as it relates to alleged acts of discrimination in the period before 11 November, 2018, depends upon the validity of the claim of discrimination which allegedly occurred in the period after that date. That is a question to be decided on the evidence.

Admissibility is also dependent upon some link being established between the occurrences outside the time limit, and those inside the cognisable period, which makes it just and reasonable for them to be treated as part of a continuing act upon which the complainant can rely.

Therefore, in accordance with the consistent approach applied by the Labour Court in circumstances such as those that prevail in the instant case, I must first consider whether an act or acts of discrimination occurred within the cognisable period for the within complaint before it can consider whether events outside of that period can be considered to be part of a continuum or regime of discrimination and within my jurisdiction. It is only in circumstances where such a conclusion was to be reached that I would have the jurisdiction to consider events which occurred prior to the cognisable period.

At the outset of the hearing I indicated to the parties that I would allow the Complainant adduce evidence in relation to the alleged occurrences of discrimination that were within the time limit and suggested that if these occurrences were found to constitute acts of discrimination that I would then reconvene to hear evidence in relation to all of the occurrences relied upon. If, however these occurrences where found not to have involved an act(s) of discrimination the complaint relating to the earlier occurrences could not be entertained having regard to Section 77(5) of the Acts as the most recent occurrences would have been outside the time limit. Both Counsel for the Respondent and the Complainant agreed to proceed in the manner proposed above.

The Complainant submits that he has been subjected to indirect discrimination by the Respondent on an ongoing basis for a number of years dating back to 2010. The Complainant claims that his Head of Department, Mr. A, has continually and deliberately favoured one of the Lecturers of Spanish who is an Irish-national lecturer, over him and that in doing so he breached the Respondent’s Dignity and Respect Policy. The Complainant has both complained and alerted several managers of the situation but nothing has been done to resolve this inequality.

The Complainant submits that after 7 years of being discriminated against, in July 2017, he along with a colleague who was also a victim of discrimination by the Head of Department, Mr. A, had a meeting with the Vice-President for Corporate Affairs, Ms. B, with the purpose of making an official complaint of discrimination and inequality. The Complainant made an official complaint of racial discrimination on 9 November 2017, and in this complaint 13 separate concerns/issues were raised. This complaint was investigated in line with the Respondent’s Dignity and Respect Policy and an investigation was carried out by an external organisation which concluded with the report and findings dated 20 November 2018.

The Complainant submits that the investigating team substantially materially upheld the substance of his complaints. The investigation report found that the Complainant had not been subjected to direct discrimination on the grounds of race or nationality but found that on the balance of probabilities he had been subjected to indirect discrimination on the basis of the outcome of the Mr. A’s behaviour and on the basis of his nationality. The Complainant contends that during the investigation Mr. A made a number of admissions to the investigating team, acknowledging that he had breached the Respondent’s Dignity and Respect Policy. The report recommended that in light of the fact that the Complainant’s complaints were substantially materially upheld that the matter should be taken forward for consideration as part of the institute’s disciplinary process.

The Complainant submits that under the Dignity and Respect Policy, Mr. A had two weeks within which to appeal the findings of the investigation. He did not appeal within this period. However, Mr. A subsequently lodged an appeal following this period and the appeal was accepted by the Respondent. Following this the Complainant received no communication or updates with regard to the status of the appeal for over two and a half months. The Complainant requested an update on the appeal from the Vice-President for Corporate Affairs, Ms. B, on 28 March, 2019 and he received written confirmation from the Respondent’s HR Department on the same day that the they were looking to appoint an external appeals officer and that they were going to do so through a tendering process and were engaging with the Office of Government Procurement in this regard. The Complainant submits that the method through which the respondent sought to appoint an external appeals officer was wholly unsuitable and caused unnecessary delays and was done deliberately with a view to kicking the can down the road in the hope that matters within the Department would resolve themselves.

The Complainant submits that he has been continually undermined and treated in such a manner which equates to indirect discrimination. The incidences in and off themselves, when viewed in isolation may seem minor or trivial in nature. However, when placed and viewed in their broader historical background, a clear pattern of ongoing discrimination by the Respondent is evident. The ongoing discrimination is most upsetting for the Complainant, in light of the admissions made by the Respondent and the findings in the investigators report. Despite the Complainant’s claims being materially and substantially upheld there has been no change in the behaviour of the Respondent and the discrimination has been ongoing. The Complainant submits that he is incredibly frustrated and feels that he is being silenced despite the independent report upholding his grievances.

The Complainant adduced evidence in relation to the most recent incidents of alleged discrimination which occurred during the cognisable period of this complaint. The Complainant’s submissions and evidence in relation to these incidents can be summarised as follows:

Pressure to pass a student

As part of his duties the Complainant grades students’ exams. In September 2018, the Complainant marked a repeat final exam for a student in the subject Trends in Spanish Literature, in which he lectures. The repeat exam was the last module the student required in order to complete his degree. The student got a mark of 28%, thereby failing the module. A copy of the script was then sent to an external examiner, who upheld the mark awarded by the Complainant. The student appealed the mark, which required his script to be re-examined. On the 10 October, 2018, Mr. A wrote to the Complainant and informed him that the student’s script had “gone missing”. In such circumstances, the student’s appeal would have been accepted and granted. However, the Complainant, as was his custom and practice, had made a copy of the script, as he does with all repeat scripts. Therefore, the Complainant was in a position to prepare a report for the Appeals Board, which he duly did and submitted.

Following this, the Appeals Board drafted a new marking scheme and requested that the Complainant re-mark the student’s script in line with the revised marking scheme. The Complainant re-marked the exam under the new marking scheme and the student received a grade of 25%. The Complainant sent a note of this result to the office Secretary on the 18 November, 2018. Despite this the mark was not signed off by the Appeals Board. The external examiner who had upheld the Complainant’s original mark of 28% went on maternity leave. It subsequently transpired that she was contacted by Mr. A, while on maternity leave. She was of the view that the student’s mark should be increased to 35%, thereby meaning the student would pass through the process of compensation. The Complainant made several attempts by email to contact the external examiner to discuss the appeal and to clarify her revised mark. The Complainant was not successful in contacting the external examiner. The Complainant then contacted the Head of the School where the external examiner was based to enquire about contacting her and was informed by the Head of the school that she was on maternity leave and therefore unavailable.

The Complainant clearly outlined his concerns over the pressure to pass the student as he wished to uphold the principles of integrity and transparency. Ultimately, on the 14 March, 2019 the Complainant was informed that the students appeal was upheld. On the 19 March, 2019 the Complainant was contacted by the Head of the School of Humanities and told that the student would be attending lectures and resitting the exam. The Complainant submits that the effect of the Respondent’s interventions has been to second guess his work and ability to carry out his job. The Complainant is concerned that these interventions have had the effect of damaging his reputation and credibility as a Lecturer and as an Examiner. As a result of the foregoing and the treatment by the Respondent the Complainant went on stress leave from January 9 to 15 January, 2019.

Timetable within the Spanish Department

The Complainant submits that when additional hours become available in the Language Department (i.e. when a member of staff is on maternity leave) those hours are firstly offered to the most senior member of staff. Where that senior member of staff has a full timetable (16 hours approx.), the hours will then be offered to the next most senior member of staff and so on and so forth, until the hours are covered. The Complainant has worked in the Spanish Department since 2004 and has always worked whatever extra hours are available. He is currently contracted for 8.67 hours per week.

The Complainant submits that a colleague was due to go on maternity leave in January, 2019. She had previously gone on maternity leave and the Complainant “took up” her hours. On 13 December 2018 the Complainant was stopped in the corridor by Mr. A and asked whether he wanted “12 hours over two days or a full timetable”. The Complainant submits that Mr. A’s question on the 13 December, 2018 was designed to, and indeed, had the effect of upsetting and undermining him. The Complainant submits that the Respondent is aware that he has, since the commencement of his employment in 2004, worked any extra available hours.

Role as Co-ordinator for External Examiner

The Complainant submits that he has always sought extra responsibilities throughout his time working for the Respondent, his reason for doing so was to grow professionally and gain experience which would stand to him when seeking promotion/career development. The Complainant’s allegation that the Respondent did not rotate key non lecturing roles was upheld in the findings of the Investigation report which confirmed that he did not receive such opportunities form the Respondent. Therefore, Mr. A’s scrutiny and micro-management of the Complainant in his role as co-ordinator was deliberately done with the intention of undermining him.

The Complainant submits that he contacted his three Department lecturing colleagues on 28 March, 2019 to ascertain which dates would best suit them for the oral exams with external examiner. This correspondence was sent via email and written in Spanish. Replies were received from two colleagues (who were Spanish nationals). No reply was received from the third colleague (who was an Irish national), instead the Complainant was sent an email on 29 March, 2019 by the third colleague, the HR Manager was copied on this email, requesting that the Complainant email her in English as opposed to Spanish. The Complainant resent the email in English. The Complainant understands that the third colleague contacted the external examiner directly. The Complainant feels that this was done deliberately with the purpose of undermining his role as external exam co-ordinator and an attempt to try painting him as incapable of carrying out his job. The Complainant submits that he was subjected to discrimination in relation to this matter due to the undermining attitude of Mr. A and the Irish-national Lecturer. As a result of the foregoing and the treatment by the Respondent the Complainant went on stress leave from 8 – 12 April, 2019.

Generally being undermined/silenced and ignored

The Complainant submits that the Respondent has accepted the submission of Mr. A’s appeal of the findings of the report despite the appeal being lodged outside the time allowed (2 weeks) under the Dignity and Respect Policy. The Complainant was emailed by Ms. B, Vice President for Corporate Affairs on the 15 January, 2019 and informed that they had accepted Mr. A’s appeal of the findings within the report despite the deadline for the lodging of an appeal having passed. Following this, the Complainant received no communication or updates with regard to the status of the appeal for over two and a half months. The Complainant requested an update on the appeal from Ms. B on 28 March, 2019. The HR Department wrote to the Complainant on the same day informing him that they were looking to appoint an external appeals officer and that they were going to do so through a tendering process and were engaging with the Office of Government Procurement in this regard. The Complainant contends that the Respondent has chosen to disregard the timelines set out in the policy they drafted.

The Complainant submits that he felt aggrieved and that due process had been disregarded and the Respondent had been picking and choosing which policies it wished to enforce and against whom it wished to enforce them. The Complainant believed that the policies were in place to protect him and vindicate his rights, but the deliberate actions of the Respondent have led to his increased levels of frustration and hopelessness, resulting in him having to take stress leave. The Complainant believed that if he pursued his legitimate grievances in line with the policies, as drafted by the Respondent, that these would be independently investigated and that whatever corrective action was recommended/required would be undertaken. Following the publication of the Investigation Report, the Complainant hoped that the findings would bring about a change in how he was being treated and discriminated against by the Respondent. However, this has not been the case.

The Complainant submits that the discrimination is ongoing, and that the Respondent has disregarded the findings of the internal investigation and is frustrated that he has had to lodge the claim herein in order to have his maltreatment acknowledged and vindicated. As referred to above, the result of the Respondent’s actions and inactions have caused the Complainant to feel like he is being silenced, which has been incredibly frustrating and has ultimately led to him experiencing increased blood pressure which has necessitated him having to take several periods of stress leave which have required him to be put on medication.

The Complainant has been required to go on stress leave on three occasions. On the first two occasions the Complainant contacted HR and made it clear that the cause of his stress was directly related to the matters referred to above and his frustration at feeling silenced. The HR Department emailed the Complainant on both occasions and proposed a follow up conversation to discuss the issue. On both occasions the Complainant accepted the invitation to discuss the matters and requested that HR propose a time and date to do so. The Complainant never received any response from HR. The Complainant submits that the lack of follow up by the Respondent is most upsetting to him and has led him to feel that the Respondent has no genuine interest in his actual physical/mental health and that their actions have merely been performative in an effort to try and comply with its own policies and the legislation.

The Complainant submits that on the basis of the contents of the Report and the ongoing actions/inactions of the Respondent that he has discharged the prima facie requirement of establishing that there has been evidence of indirect discrimination. He submits that while the most recent incidents in and of themselves may seem minor, when put into context and viewed against the findings in the Report it is evident that there has been an ongoing pattern of discrimination against the Complainant.

The Respondent submits that the Complainant lectures in Spanish in the Department of Language, Tourism and Hospitality and that there is no “Spanish Department”. There are, however, four lecturers in Spanish. The Complainant and another lecturer in Spanish made a complaint in November, 2017 pursuant to the Respondent’s Dignity and Respect Policy. That complaint was the subject of an investigation conducted by an independent investigator and was in turn subject to a desktop appeal undertaken by another independent investigator.

The Respondent submits that the Dignity and Respect Policy is not a replacement for nor is it part of a formal process pursuant to the provisions of the Employment Equality legislation. The Policy sets out informal and formal internal procedures and expressly provides for and makes reference to complaints made pursuant to the legislation. The policy expressly provides, inter alia, as follows: “… nothing in this policy prevents you from exercising your legal rights at any time. A description of these is beyond the scope of this policy …”.

The Respondent submits it is clear that the internal processes under the policy do not purport to nor indeed could they replace an employee’s right to bring a claim pursuant to the legislation. Equally, however it must be pointed out that the outcome of an internal process, such as in the instant case, cannot determine a complaint pursuant to the Act.

The Respondent submits that the Complainant is not entitled to rely on any finding in the report in support of his claim of discrimination contrary to the Employment Equality Acts in the instant complaint. The analysis conducted by the independent investigator did not comply with the provisions of the statute. There is no analysis in the report and indeed no finding in the report that the matters complained about by the Complainant were by reason of his Spanish nationality. It is clear that something which might happen within an organisation might be contrary to that organisation’s policy but not unlawful and in particular not contrary to the provisions of the Employment Equality Legislation. The most that can be said about the findings of the report are that they are the opinion of the investigator complying with her role pursuant to the internal process and are not the reasoned decision of a judicial or quasi-judicial body determining a legal question.

The Respondent submits that there is no evidence, either in the complaint form or elsewhere, suggesting that the Complainant has been subject to any “indirect” discrimination. No policy or criterion has been advanced by the Complainant which would put him at a disadvantage by reason of his race. In relation to direct discrimination, the Respondent also submits that that there is no evidence whatsoever to suggest that any difference in treatment which the Complainant alleges was by reason, wholly or mainly, of his race.

The Respondent’s submissions in response to the most recent incidents of alleged discrimination which occurred during the cognisable period can be summarised as follows:

Pressure to pass a student

The Respondent submits that the most that can be said about this matter, even taking the Complainant’s facts as being undisputed, is that he was disappointed with the outcome of an appeals process which resulted in a student passing a module which he believed he ought not have done. The Respondent has a robust examination marking process involving appeals and references to external examiners. The fact that the Complainant disagrees with the outcome does not of course mean that he was discriminated against and most particularly there is no evidence that he was discriminated against on the grounds of his race or nationality. It cannot be shown and is not shown by the Complainant that he was directly discriminated against and there is absolutely no evidence whatsoever that there was any criterion which had the effect of indirectly discriminating against him viz-a-viz other lecturers, whether in Spanish language, other languages or indeed other disciplines.

Timetable within the Spanish Department

The Respondent submits that there does not exist a Spanish language department but rather a Language Department. However, it is agreed that distribution of hours must be based on the individual lecturer’s competence and specialisation. The complaint made is that certain hours became available when one member of staff, a lecturer in Spanish, was going on maternity leave. The system is that the availability of such hours is, in the first instance, offered to those staff on less than full time hours who hold the necessary qualifications to undertake the hours. At the relevant time the Complainant’s contractual hours were 8.67 hours per week. The Complainant complains that on 13 December, 2018 he was approached by Mr. A and asked whether he “wanted 12 hours over two days or a full timetable”. The Complainant asserts that this question was designed to upset or undermine him in circumstances where Mr. A was aware that he had always been willing to work extra hours.

The Respondent submits that there is no evidence whatsoever of adverse treatment by reason of the Complainant’s race or nationality in relation to this matter and there is no evidence that he was treated differently than any lecturer of another race or nationality or that such a lecturer would have been treated differently. There is little doubt that the Complainant was being offered the additional hours and he was simply being asked by Mr. A as to how they were to be arranged. It might be argued that it would have been remiss of Mr. A if he did not inquire of the Complainant how best he might organise and assign the additional hours. In fact, a member of lecturing staff undertaking full teaching hours are required to have their teaching hours spread across a full week and therefore Mr. A went above and beyond to seek to organise and assign the additional hours to suit the Complainant. However, that does not arise, and it is clear in all of the circumstances that there is no justification whatsoever for the making of a complaint pursuant to the Equality Legislation.

Role as Co-ordinator for External Examiner

The Respondent submits that the complaint that there was an attempt to undermine his role as Co-ordinator for the External Examiner lacks any basis for alleging that it was done by reason of his nationality. In the first instance a superior cannot be criticised for sending an email to a subordinate reminding them about some aspect of their job. Just because such an email is sent does not mean and indeed could not mean that its purpose was to undermine the person in some way. Secondly, the Complainant complains about another staff member contacting the external examiner directly. That may or may not be justified. That may or may not be appropriate but there is no evidence that taking these combined events that they somehow constitute discrimination on the grounds of race or nationality.

Generally being undermined/silenced and ignored

The Complainant claims that he was aggrieved and feels that the process relating to the investigation of his internal grievance had been disregarded and that the Respondent was picking and choosing which policies it wished to enforce and as against whom. He says that he believes that the policies were in place to protect him and vindicate his rights. The Respondent submits that whilst it is accepted that the policies are there to protect staff, they are not there to vindicate rights in a legal sense but to seek to find internal solutions whether by a formal route or an informal route to resolve internal difficulties. Any employee’s individual legal rights, including his rights not to be discriminated against contrary to the legislation can only be vindicated by actions taken pursuant to the legislation as the Complainant now does.

The Respondent submits that it must be remembered that the internal investigation and the complaint which led to it were not directed against the Respondent per se but against Mr. A, the Complainant’s superior. Mr. A, as the respondent to those internal processes was just as entitled to natural justice and fair procedures as the Complainant and the Respondent is under an obligation to protect all employee’s rights, including those against whom complaints are made. There is no evidence that the Respondent has disregarded the findings of the internal investigation and most definitely there is no evidence whatsoever that the Complainant has been “silenced”. The Complainant has made his internal complaints in accordance with the procedure and they have been dealt with in accordance with that procedure. He now makes this external complaint in accordance with the provisions of the legislation and that complaint is being dealt with in accordance with the legal process.

In summary, the Respondent submits that none of the alleged occurrences of discrimination set out above are based on any evidence of discrimination whether direct or indirect and merely asserting that there has been a breach of the legislation is insufficient. The Respondent referred to the burden of proof as set out in Section 85A of the Acts and submits that is well established in the case law which has emanated from the Labour Court that the Complainant must not only establish the primary facts upon which he relies but that these facts are of sufficient significance to raise an inference of discrimination. The Respondent submits that the Complainant has utterly failed to meet the tests set out by the Labour Court in relation to the establishing of facts such as would shift the burden to the Respondent.

The Respondent relied upon the following cases from the Labour Court in support of its position, namely: Southern Health Board -v- Mitchell [2001] ELR 201, Cork City Council -v- McCarthy EDA0821 and Melbury Developments Limited -v- Valpeters EDA0917.

Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination. It requires the Complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination in relation to him. If he succeeds in doing so, then, and only then, is it for the Respondent to prove the contrary. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of “sufficient significance” before a prima facie case is established and the burden of proof shifts to the Respondent.

In deciding on this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the Complainant.   It is only where such a prima facie case has been established that the burden of proving there was no infringement of the principle of equal treatment passes to the Respondent.

The Labour Court elaborated on the interpretation of Section 85A in the case of Melbury v. Valpeters EDA0917 where it held that Section 85A: "…. 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.”

The issues for consideration by me are (1) whether or not the Complainant was subjected to discriminatory treatment (direct or indirect) on the grounds of race in relation to his conditions of employment, provision of training and/or promotion and (2) whether or not the Respondent subjected the Complainant to victimisation contrary to Section 74(2) of the Acts.

In reaching my decision I have taken into account all of the evidence, written and oral, submitted by the parties. I heard evidence at the oral hearing from the following witnesses, namely the Complainant and from Mr. A, Head of Department and Ms. B, Vice-President for Corporate Affairs on behalf of the Respondent.

Indirect Discrimination

The first issue that I must address in the present case is whether the alleged discrimination by the Complainant should be considered in the context of direct or indirect discrimination. The Complainant claims that he has been subjected to a number of acts of indirect discrimination on the grounds of race during the cognisable period of this complaint, namely:

·         That unfair pressure was applied to him by the Respondent to pass a student;

·         That he was treated in a discriminatory manner in relation to the distribution of hours within the Language Department;

·         That the Respondent sought to undermine him in relation to the discharge of his duties as Coordinator for the External Examiner; and

·         That the Respondent sought to generally undermine him in the discharge of his duties and that there was an attempt to silence and ignore him in pursuance of the grievance that he raised under the internal procedures.

Indirect discrimination in relation to the non-gender grounds is covered at Section 31(1) of the Acts which should be read in conjunction with Section 22(1) which states:“where an apparently neutral provision puts persons of a particular race at a particular disadvantage compared with other persons, unless the provision is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.” The definition of ‘provision’inSection 2 is broad: “a term in a contract or a requirement, criterion, practice, regime, policy or condition relating to employment.” The above definition of indirect discrimination reflects the definition set out in Article 2 of the EU Framework Recast Directive 2006/54/EC.  

It is clear that the first criterion which the Complainant must satisfy in terms of establishing a case of indirect discrimination is to establish that the Respondent has applied or sought to apply an apparently neutral provision which puts him at “a particular disadvantage” by reason of his race in relation to his conditions of employment, provision of training and/or promotion. I am satisfied that the Complainant has failed to identify any neutral provision, criterion or practice in the context of instant complaint which puts him at a disadvantage by reason of his race.

Instead, the Complainant has sought to rely upon the findings of the Report into his internal grievance which concluded that he had been subjected to indirect discrimination by reason of the Respondent’s behaviour based on his race/nationality. It is important to note that that investigation did not have any statutory authority or jurisdiction to make findings in relation to the compliance or otherwise by the Respondent with its obligations under the Employment Equality Acts. In the circumstances, I am satisfied that the findings of that investigation are of no evidential value to the Complainant in terms of his claim in the instant complaint that the Respondent has contravened the provisions of Section 31(1) of the Acts in relation to his employment.

Having regard to the totality of the evidence adduced, I find that the Complainant has failed to adduce any significant evidence to support his claims of indirect discrimination in the context of the instant complaint. Therefore, I find that the Complainant has failed to establish a prima facie case of indirect discrimination in relation to his conditions of employment, provision of training and/or promotion contrary to Section 31(1) of the Acts.

Direct Discrimination

I have also considered the alleged acts of discrimination in the context of direct discrimination. Section 6(1) of the Employment Equality Acts provides that direct 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) …..”. Section 6(2)(h) of the Acts defines the discriminatory ground of race as follows – “as between any 2 persons …. that they are of different race, colour, nationality or ethnic or national origins”.

Having considered the evidence, I am satisfied that the Complainant has failed to establish facts from which it could be inferred that persons of a different nationality, race or ethnic origins were, or would have been treated more favourably than him in relation to the matters which he has sought to rely upon in the context of the instant complaint. The Complainant has failed to adduce any significant evidence to support his claims that the alleged treatment was discriminatory on the ground of race but rather has essentially relied upon supposition and assertion, unsupported by evidence, in support of these claims.  

I have found the Respondent’s evidence in relation to these matters to be more compelling and I accept the Respondent’s evidence that the Complainant was not subjected to any less favourable treatment in relation to the matters complained of on account of his race or nationality. Having regard to the foregoing, I find that the Complainant has failed to establish a prima facie case of direct discrimination on the grounds of race in relation to his conditions of employment, training and/or promotion within the cognisable period of this complaint.

Based on the foregoing conclusions, I find that the events occurring within the cognisable period do not constitute individual acts or a continuum of discrimination and as a result I do not have jurisdiction to consider the complaints made by the Complainant relating to events outside the six month period set out in the Acts for the making of a complaint of discrimination.

Accordingly, I find that the Respondent did not discriminate against the Complainant on the race ground contrary to Section 8 of the Acts and that his complaint fails.

Victimisation

The final element of the Complainant’s complaint which I must consider relates to the claim that he was subjected to victimisation contrary to the Acts. Section 74(2) of the Acts defines victimisation as follows:

“victimisation” occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to-

(a)    a complaint of discrimination made by the employee to the employer,

(b)    any proceedings by the complainant

….. ….. ….. [not relevant]

(f)     an employee having opposed by lawful means an act that is unlawful under this Act….

(g)    an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs.”

In the case of Tom Barrett -v- Department of Defence EDA1017the Labour Court set out the three components which must be present for a claim of victimisation under Section 74(2) of the Acts to be made out. It stated that (i) the Complainant must have taken action of a type referred to at paragraphs (a)-(g) of Section 74(2) – what it terms a “protected act”, (ii) the Complainant must be subjected to adverse treatment by his/her employer and (iii) the adverse treatment must be in reaction to the protected act having been taken by the Complainant. In the instant case, I must decide, in the first instance, whether or not the Complainant took action that could be regarded as a “protected act”.

The Complainant has claimed that he was subjected to victimisation by the Respondent as a result of having made a complaint of discrimination on 9 November, 2017 in accordance with the internal grievance procedures (Dignity and Respect Policy). The Respondent does not dispute that the Complainant made the said complaint of discrimination. In the circumstances, I find that the Complainant did take a “protected act” within the meaning of paragraph (a) of Section 74(2) of the Acts.

In considering whether the Complainant has satisfied parts (ii) and (iii) of the test outlined above, I have taken cognizance of the case of Roy Mackarel –v- Monaghan County Council EDA1213 where the Labour Court held that: “Both the Act and the Directive provide that victimisation occurs where a detriment is imposed on a worker ‘as a reaction to’ a complaint or other protected act. The use of the expression ‘as a reaction to’ connotes that the making of a complaint, or other protected act, must be an influencing factor in the decision to impose the impugned detriment although it need not be the only or indeed the principal reason for the decision. It is, in the Court’s view, sufficient if the making of the complaint was an operative factor, in the sense of being anything other than a trivial influence, operating on the mind of the decision maker (see by analogy the dictum of Peter Gibson LJ in Wong v Igen Limited and Ors. [2005] IRLR 258 in relation to the degree of connection required between race and an impugned act or omission necessary to make out a claim of discrimination).”

The detriment complained of by the Complainant relates to the adverse and discriminatory treatment which he claims to have been subjected by the Respondent in the context of the incidents set out above, namely: being pressurised into passing a student; unfair treatment in relation to the distribution of hours and attempts to undermine and silence him in the workplace.

Having regard to the totality of the evidence adduced, I find that the Complainant has failed to establish that he was subjected to any adverse or discriminatory treatment in respect of the above matters. In the circumstances, I am not satisfied that the Complainant has adduced any evidence from which it could be reasonably concluded that he has been subjected to victimisation within the meaning of the Acts in relation to the alleged adverse treatment claimed. Accordingly, I find that the Complainant has failed to establish facts from which it could be inferred that he was subjected to victimisation within the meaning of Section 74(2) of the Acts in the instant case.  

Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Section 82 of the Act. I find that:

(i) the Respondent did not discriminate against the Complainant on the race ground pursuant to Section 6(2) of the Acts in terms of his conditions of employment, provision of training and/or promotion and contrary to Section 8(1) of the Acts;

(ii) the Respondent did not subject the Complainant to victimisation contrary to Section 74(2) of the Acts.

Accordingly, I find in favour of the Respondent in this case.

Employment Equality Acts, 1998 to 2015 – Race Ground - Direct Discrimination – Section 8 – Conditions of Employment – Provision of Training – Promotion – Indirect Discrimination – Section 31 – Victimisation – Section 74(2)