Complainant

Respondent

Anonymised Parties

A Corporate Travel Consultant

A Corporate Travel Company

Representatives

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-00029539-001

08/07/2019

The Complainant commenced employment with the Respondent as a Corporate Travel Consultant on 5th March 2028. His employment ended on 12th February 2019.   He was paid a gross monthly salary of €2,250.00. The Complainant lodged a complaint with the WRC on 8th July 2019, a hearing was held on 4th December 2019. The Complainant submitted that he was discriminated against by reason of his Civil Status, Religion and Race, that his employer treated him unlawfully by discriminating against him in promoting him, in giving him training, in victimising him, in Conditions of employment, in dismissing him for discriminatory reasons, dismissing him because he opposed discrimination, discriminating against him in harassing him and discriminating against him in Other. The last date of alleged discrimination was 12th February 2019.

The Complainant provided a written submission.

In this submission the Complainant submits that the Respondent discriminated against him on the grounds of; civil status; race and religion. This alleged discrimination relates to (i) discrimination in the workplace; failure to provide equal opportunities in relation to skills, training and promotion by direct and indirect discrimination, favouritism and offensive calendar (ii) Harassment and bullying in the workplace; by being the subject of a sequence of unhealthy acts (iii) discriminatory dismissal, impartial treatment not in accordance with the general principles of natural justice and fair procedures.

The Complainant submits that the Respondent did not take steps to prevent harassment occurring in the first place. The Complainant submits that there is no recruitment check for 70% of employees coming from outside Ireland and that the Respondent’s Staff Handbook is not sufficient, nor is there time allocated to the matter.

The Complainant submits that, having been selected, he was denied training on a leadership course.

The Complainant also submits that when the harassment took place the Respondent did not carry out the actions it should have as laid down in Code of Practice S.I. 146/2000., i.e. that the Respondent did not follow fair procedures in relation to disciplinary matters.

The Complainant also submitted that the Respondent was vicariously liable for the actions of its employees.

The Complainant rejects his contract termination under “violence and intimidation”, on grounds of lack of clear evidence supporting that decision.

In direct evidence, the Complainant stated that he had been subject of indirect discrimination when a colleague made a comment about another colleague’s accent being a problem as he was African, the Complainant is African born.

In response to questions the Complainant stated that:

Regarding Civil Status, he had been treated less favourably than an engaged colleague who had been selected for a training course and promoted.

Regarding Religion, the three colleagues who had made complaints against him were all of a different religion to his own. That the Respondent did not follow disciplinary procedures the same for him as they had for a colleague of another religion.

Regarding Race, the Complainant stated that when you have a beard and are from a North African country, people are condescending to you; all his colleagues were European, while he is not. He also stated that the investigatory procedures utilised by the Respondent into other complaints made were different than those used by the Respondent when investigating him.

Regarding Promotion, the Complainant stated that he was discriminated against when he did not get called for the Leadership Development Programme as others were and his application for a promotion was lost.

Regarding training, the Complainant stated that although he was selected for the Leadership Development Programme, he was never told it had been postponed.

Regarding victimisation, the Complainant stated that once he said he was going to bring a claim to the WRC he was treated differently.

Regarding Conditions of Employment, the Complainant submitted that he had to work more hours as he had to draft documents due to what was going on.

Regarding his alleged discriminatory dismissal, the Complainant stated that there was insufficient evidence to find on the substantive issue; that he was not allowed see CCTV footage of the incident, or cross examine witnesses.

Regarding dismissal for opposing Discrimination, the Complainant submitted, that he was fired very soon after he made his complaint in January 2019.

In regard harassment, the Complainant stated that he had been contacted by and stared at by a colleague. He also stated that he had been harassed in the car park by the same person, but he did not make a formal complaint.

Regarding the allegation that he was discriminated against in other ways, the Complainant stated that when it came to him nothing worked procedurally; everyday was “going to hearings”. The Respondent did not allow adversarial debate in his case while it did in others.

The Respondent provided a written submission.

The Respondent denies all the allegations made by the Complainant. The Respondent submits that it dealt with this matter in a fair and equitable manner. The Respondent takes pride in the diversification in the company and it has policies around harassment, favouritism and equal opportunities.

The Respondent submitted that three complaints were made against the Complainant by colleagues, one in September 2018, one in December 2018 and one in January 2019. Following investigations, no disciplinary action was taken against the Complainant, however, all employees were remined that they were to treat each other in a polite, respectful and professional manner and that inappropriate behaviour would not be tolerated.

On 31st January 2019, the Respondent received a written complaint from the Complainant against two colleagues, Mr A and Mr B. The complaint included details on alleged communication to staff by Mr B and alleged racial and religious comments made by Mr A. The Respondent investigated the matter and took appropriate action where required as per the Company policies and procedures.

The Respondent submits that on the 1st February 2019 an incident occurred on site whereby an alleged altercation happened in the male toilets between the Complainant and the Mr A. This incident was investigated by the Respondent and referred for disciplinary action on the grounds of “physical violent behaviour and intimidation”. On 12th February 2019, a disciplinary meeting was held. After consideration and review the outcome of the disciplinary meeting was summary dismissal.

On 12th February 2019, the Complainant appealed the decision to dismiss.   This appeal was heard on 20th February 2019. Having heard the Complainant’s case a further appeal hearing took place on 26th March 2019. The outcome of this appeal was to uphold the decision to dismiss the Complainant.

The Respondent submits that on 26th May 2019, a Form E.E.2, Section 76, “Right to Information”, was received. In this form the Complainant indicated the discriminatory grounds as, Gender, Religion, and Race. The Respondent replied on 26th June 2019, disputing the allegations made.

The Respondent submits that regarding training the Leadership Development Program, referred to by the Complainant, was postponed for all employees and the Complainant’s application for another course cited was never received.

In conclusion, the Respondent submits that it acted reasonably in this matter. That under no circumstances or at any time throughout the Complainant’s employment did the Respondent show any forms of discrimination.

The Respondent submits that it operates and promotes diversity in the workplace with 70% of their employees coming from outside Ireland, this includes employees from all protected classes.

The Relevant Law

The law here is the Employment Equality Act,1998 supported by extensive legal precedents and established judgements.

The key issue in this case rests of the legal “Burden of Proof” argument.

 Section 85A of the Employment Equality Acts is quoted below

85A.— (1) Where in any proceedings facts are established by or on behalf of a Complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the Respondent to prove the contrary.

(2) This section is without prejudice to any other enactment or rule of law in relation to the burden of proof in any proceedings which may be more favourable to a Complainant.

(3) Where, in any proceedings arising from a reference of a matter by the Authority to the Director General of the Workplace Relations Commission   under section 85(1) , facts are established by or on behalf of the Authority from which it may be presumed that an action or a failure mentioned in a paragraph of that provision has occurred, it is for the Respondent to prove the contrary.

(4) In this section ‘ discrimination ’ includes —

( a ) indirect discrimination,

( b ) victimisation,

( c ) harassment or sexual harassment,

( d ) the inclusion in a collective agreement to which section 9 applies of a provision which, by virtue of that section, is null and void.

 This section sets out the burden of proof requirement to be established by both the Complainant and the Respondent. The section shifts the burden of proof to the Respondent where facts are established by a Complainant “from which it may be presumed that there has been discrimination in relation to him or her”.

The issue of the evidence needed by both Complainants and Respondents has been carefully considered in the case law of the former EAT and the Labour Court. The starting point is the decision of the Labour Court in Southern Health Board v Mitchell,)2001 ELR201). This is still considered the leading decision in this area.

The Court considered the extent of the evidence required, which a claimant must produce, before a prima facie case of discrimination can be made out:

 “The first requirement is that the claimant must establish facts from which it may 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 is no infringement of the principle of equal treatment.”

 This test requires that facts relied upon by a Complainant must be proved by them to the satisfaction of the Adjudicator or Labour Court at the level of balance of probabilities and if proven must be of sufficient significance as to raise an inference of discrimination.

 In establishing the facts to meet burden of proof resting on a Complainant, the Labour Court commented in Cork City Council v McCarthy EDA 0821 as follows:

 “The type or range of facts which may be relied upon by a Complainant may vary significantly from case to case. The law provides that the probative burden shifts where a Complainant proves facts from which it may be presumed that there has been direct or indirect discrimination. The language used indicates that where the primary facts alleged are proved it remains for the Court to decide if the inference of presumption contended for can properly be drawn from those facts. This entails a consideration of the range of conclusions which may appropriately be drawn to explain a particular fact or a set of facts which are proved in evidence. At the initial stage the Complainant is merely seeking to establish a prima facie case. Hence, it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts.”

 The argument that mere membership of a protected class and specific treatment was sufficient for a Complainant to meet his or burden of proof in terms of s.85A was subsequently rejected in emphatic terms by the Labour Court, initially in the context of race discrimination but now beyond:

 “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 hat evidential rule. - Melbury Developments Ltd v Valpeters EDA 09/17

 Therefore, the evidence produced by the Complainant must be of a sufficient strength and/or significance to raise a presumption of discrimination which then arises for answer and/or rebuttal by the Respondent by way of proving non-discriminatory reasons for the unfavourable treatment. The mere difference in for example, Civil Status or Race, and a difference in treatment, cannot in itself provide a sufficient evidential basis upon which to raise a “presumption of discrimination”.

 In summary therefore, the key issue is that in a discrimination claim good solid proof is required on the Discriminatory grounds being claimed; in this case, Civil Status, Race and Religion, to sustain a claim under the Employment Equality Act, 1998.

 In plain English very solid facts regarding Civil Status, Race and Religion discrimination, as opposed to a range of other issues that may be upsetting to the Complainant but are of a general nature only and apply to a wide variety of staff irrespective of Civil Status, Race or Religion, are required in this case.

However, Legal Precedents notwithstanding, in all situations each case must be seen in the light of its own evidence and particular facts. I will consider these next.

It is clear there were ongoing difficulties in this workplace between the Complainant and his colleagues. Problems arose in what would seem to have been unhealthy regularity.   Management’s informal approach and admonishments seemed to fall on deaf ears. Perhaps a stricter enforcement of the disciplinary procedures or an attempt at conflict resolution at an earlier stage in this matter might have prevented things escalating to the point they did.

Matters came to a head on 1st February 2019, when the Complainant and a colleague were involved in some sort of contretemps in the washrooms.   Whatever happened and however the investigation was carried out the result was that the Complainant was dismissed on the grounds of, “physical violent behaviour and intimidation.”   The decision to dismiss was appealed but the appeal was unsuccessful.

Throughout the hearing, the Complainant pursued a line that his dismissal was procedurally unfair and lacking the requirements of Natural Justice and that he had been unfairly treated in relation to getting training and being promoted. He attempted to link this alleged procedural unfairness and unfair treatment to his Civil Status, Race and Religion. However, the Complainant failed to support his contentions with any evidence. His case was based on his own interpretation of why these things took place without any evidence to substantiate his arguments.

The Complainant has not demonstrated in any manner how someone with different characteristics than his Civil status, Religion or Race was (or would have been) treated differently in these instances.

 Accordingly, I have decided that the required level of proof, a required prima facie level, in an Equality case has not been established to sustain the overall claim.

The complaints listed on the complaint form are set out below and the required decision is given on each.

Discrimination on Grounds of Civil Status; no prima facie case established.

Discrimination on Grounds of Religion; no prima facie case established.

Discrimination on Grounds of Race; no prima facie case established.

Discrimination regarding promoting him; no prima facie case established.

Discrimination regarding training; no prima facie case established.

Discrimination regarding victimisation; no prima facie case established.

Discrimination regarding Conditions of employment; no prima facie case established.

Dismissal for discriminatory reasons; no prima facie case established.

Discrimination in Dismissing him because he opposed discrimination; no prima facie case established.

Discrimination regarding Harassment; no prima facie case established.

Discrimination regarding other; no prima facie case established.

I have concluded that the complainant has failed to discharge the burden of proof which requires him to establish the primary facts that can be relied upon to establish a complaint of discrimination. Based on this conclusion, I have decided that his complaint under the Employment Equality Act fails.

Prima facie, burden of proof, discrimination