Complainant

Respondent

Parties

Paramvir Singh Gill

Accenture Ireland Limited

Representatives

No representative

Shane Glynn Mason Hayes & Curran 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-00030347-001

18/08/2019

The complainant was employed by the respondent as a senior data engineer on the 4th of March 2019 and his employment was terminated on the 14th of June 2019. He was paid an annual salary of €70,000 per year and he worked 39 and ½ week. He is claiming that he was discriminated against on the religion ground in relation to his conditions of employment and dismissed contrary to the terms of the Employment Equality Acts.

The complainant practices the Sikh faith and wears a turban. He is a computer science engineer and he said he worked for the respondent company in India for 9 years. He had 4 interviews for the position of senior data engineer before he was appointed, and he took up the role in in March 2019. He said the company did not give him any induction training and provided no work to him during the first month of his employment. He said that all the other employees on the team had work to do. He complained about this to his manager and he was reported to HR. He said he was then given a programme of work which didn't match his skill sets. He said that he was told by his manager that he was not fit to pass his probation.

The complainant said that after he joined the company he was invited to the first Monday morning team meeting, but he was not invited to any other of these meetings again for the next 6 weeks. He said that all the other members of the software engineering team were invited, and he was not told of the meetings. Around the 5th week after joining the company he was giving given a job, but it only matched about 20% of the job description.

Around the 20th of April 2018, he said his email access was revoked and he was called to a meeting with his supervisor and he was told he was not fit to pass his mid-term review probation. He was told he might have to leave the company because he didn't know basic programming language. He said that is untrue and that before he was hired he had 3 hours of rigorous technical interviews at which risk management and his programming skills were tested. He said unlike other employees he was never given a performance improvement plan or given an opportunity to meet objectives set by management. He said he was not given an opportunity to finish the 6-month probation period like the other employees recruited at the same time as he was.

On the 14th of June 2019 he was called to a meeting with the HR manager and his supervisor and he was dismissed. He said he was given no opportunity to say goodbye to his team members as he was required to leave the office that day. He was also requested to return his work permit. He said the company is a large organisation and they had a lot of jobs advertised at the time, but he was given no opportunity to apply for a different role within the company before he was dismissed. He said he knows a lot of other people who were given chances to try for other roles projects, an opportunity he was denied.

In response to a question about why he believed he was discriminated against on the religion ground, the complainant sad that nothing was said directly to him in relation to his religion, but he believes that all of the above treatment constituted discrimination treatment, because he was the only person wearing a turban in the company and he was the only person treated in this way.

The respondent said that the complainant was employed as a senior data engineer. His employment commencing the 4th of March 2019. His role involved designing building and integration computer programs to manage data from various sources. The role required a person with strong data modelling skills. The role was project based role focused on big data computer programming. This means that like other employees the complainant was assigned project as and when the need arose. Shortly after he was placed on the first project the complainant asked the principal director of the software engineering team to be placed on a less technical role as he wasn't technically strong. The complainant confirmed to him that the type of technical work he was assigned to do was in his job description was a core part of his role, but he said he had no experience of personally doing this type of work. The respondent said that they could not assign him to a less technical task because the role was technical in nature. It became apparent to the respondent that the complainant’s technical abilities were far below that required of a senior engineer and he was repeatedly seeking the assistance of co-workers to complete task which would normally be completed by graduate or junior engineers without assistance.

As a senior data engineer, the complainant’s role required him to have significant experience in computer programming in order to both build and design computer programs as well as supervising and assisting the junior and graduate engineers in building and designing computer programs. This is a highly technical role. The complainant in the recruitment process and at the various interviews had confirmed that he had this experience and it was listed on his CV. The job description highlighted that the role involves designing and engineering computer programs and required the person to have strong data modelling skills.

On the 2nd of May 2019, the complainant’s line manager emailed his concerns to the complainant about his performance and abilities. He advised the complainant of the online training resources made available to the staff by the respondent as well as the relevant books and computer programming available in the respondent’s library. There were concerns in relation to the complainant’s performance being raised by other members of the team to his line manager and the effect it was having on other staff members’ work-loads. As part of the respondent’s probationary process, the complainant was called to an interim probationary meeting on the 11th of June 2019. It was standard after the first three months of the probationary period to have such a meeting.

Following the probation review the complainant’s manager emailed him a copy of the report. The manager explained to him that following his comments on the report he would consider whether to move forward with an action plan for improvement or to conduct a final probation review. A further meeting was arranged with the complainant and the 14th of June 2019 and at the meeting the respondent gave the complainant a further opportunity to make any comments on his performance throughout the probationary period before a final decision would be made. The complainant complained that the role he applied for was not the role he was being evaluated on. The complainant produced the job description for the role of technology architect, which was a more senior role and the role held by his manager and indicated that this was the role he was interviewed for. As this and not previously been raised with the respondent, the meeting was adjourned to investigate the matter further. The HR manager investigated the role which the complainant applied for with the recruiter and was satisfied that the complainant was appointed to the role for which he applied.

A further meeting was held with the complainant and it was confirmed to him that the job description and role he applied for and was selected for was that of a senior engineering role. The complainant’s manager confirmed to him that given the extent of these performance concerns an action plan would not be appropriate in the circumstances as it could not address the issues in a 3-month period. In response to the complainant’s claim, that he was discriminated against by not placing him on an action plan following the failure of interim probation review, the respondent states that the complainant was treated the same way as any other individual who had such a series of performance issues at the interim probationary stage.

The complainant was informed that his employment was being terminated in accordance with the probationary period under his contract of employment. He was told he would be paid in lieu of notice and that he would get an additional two weeks’ notice on top of the contractual notice as the respondent was conscious of the impact of the termination of employment would have on him. The complainant was also asked to return his work permit to the respondent as the respondent had an obligation to cancel the permit and return it to the Department of Employment Affairs and Social Protection.

In relation to the complainant's claim that he was not placed on a project for the first month of his employment the respondent denies this claim. They accept that other employees hired around the same time as the complainant, were assigned projects sooner than he was, but they were not in the same role as the complainant. The complainant was hired initially to work on a particular project titled ‘clinical trials’ which was due to commence soon after he was employed. This project did not progress past internal governance and the complainant was not assigned to it until the 2nd of April 2019.

In relation to the complaints claim that he was discriminated against by deliberately excluding him from weekly team meetings for 6-weeks respondent denies this happened. The respondent held bi-weekly meetings with the team and the complainant was brought to the first of these meetings following the commencement of his employment. Because of a delay in the recurring calendar invite being automatically updated to include the changes to the team, the complainant only started to receive these invites after about 6-weeks in the job. The respondent stated that the complainant was aware of these meetings having attended the first meeting. It was not the intention of the respondent to neglect to formally invite him to the meetings and his manager only became aware of this issue after the complainant made a complaint to the WRC.

The senior manager said that the complainant’s religion had nothing to do with his dismissal. He was dismissed because of his performance. He said that on one occasion the complainant raised with him an anxiety with him about wearing the turban and he explained to him that he had no issue whatsoever with it and the company employs women who wears the hijab and another employee wears a turban. Also, the second highest number of employees in the company are from India.

Legal Submission

The respondent has over 4000 staff in Ireland and this is made up of over 84 different nationalities with various religions. It was submitted that the respondent treats diversity and equal opportunities extremely serious within the business and has both an Equal Opportunities Policy and Respect the Individual Policy in place. Both these policies promote equality amongst staff and makes it clear that any form of discrimination is prohibited, and any breach is a serious disciplinary matter.

The respondent denies that the complainant was ever discriminated against on the religion ground. It was submitted that the complainant was treated no differently to any other employee in a senior engineering role. It was submitted that the complainant has put forward no evidence whatsoever to show that he was treated any differently on the grounds of religion. I was referred to section 85A of the Employment Equality Acts in relation to the burden of proof.   A person making an allegation of discrimination under the act must first demonstrate a prima facie case of discrimination exist. In the case of Dublin Corporation vs Gibney EE/1986 the Equality Officer said prima facie evidence is: “Evidence which in the absence of any convincing contradicting evidence by the employer would lead any reasonable person to conclude that discrimination had probably occurred.”

I was also referred to the test set out by the Labour Court in the case of Mitchell vs the Southern Health Board [1990] ELR 120 where the Labour Court considered the extent of the evidential burden which the complainant must discharge before a prima facie case of discrimination can be made out. I was also referred to the jurisprudence of the Labour Court in the case of Arturs Valpeters vs Mulberry Developments [2010] ELR 64 where the Labour Court set out the probative burden of proof which must be established before the burden to rebut shifts to the respondent.

In order to succeed with his claim, the complainant must demonstrate that he was discriminated against on the grounds of religion. The respondent contends that the complainant in the present case has failed to produce any evidence that he was treated less favourably than another person was treated in a comparable situation on the grounds of religion and his claim must fail.

I have to consider the complainant's claim that the respondent directly discriminated against him on the religion ground in terms of sections 6(1) and 6(2)(e) of the Employment Equality Acts 1998 as amended, in contravention of 8 of that Act in relation to his conditions of employment and dismissal. I have considered all of the evidence, written and oral, submitted to me by the complainant and the respondent.

It is a matter for the complainant in the first instant to establish a prima facie case of discriminatory treatment. It requires the complainant to establish facts from which it can be inferred that he was discriminated against on the religion ground. It is only when he has discharged this burden to the satisfaction of the Adjudication Officer that the burden shifts to the respondent to rebut the inference of discrimination raised.

Section 85A of the Employment Equality Acts 1998 as amended sets out the burden of proof as follows:

“(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 her or her, it is for the respondent to prove the contrary.”

The Labour Court in the case of The Southern Health Board v. Teresa Mitchell cited above considered the extent of the evidential burden which a complainant must discharge before a prima facie case of discrimination can be made out. The Court stated that the complainant 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 was no infringement of the principle of equal treatment.”

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

In the case of Melbury Developments and Valpeters (Det. No. EDA AO917) the Labour Court stated in relation to Section 85 A as follows:

"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.

I am must now consider the evidence in the light of the above and to determine whether the complainant has established a prima facie case of discriminatory treatment. Section 6(1) of the Employment Equality Acts 1998 provides:

6.—(1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances, discrimination shall be taken to occur where—

(a) 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’’)

Section 6(2)(e) 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 (in this Act, referred to as ‘‘the religion ground’’),

‘‘religious belief’’ includes religious background or outlook;

Section 8 provides:

8(1) In relation to—

(a) access to employment,

(b) conditions of employment,

(c) training or experience for or in relation to employment,

(d) promotion or re-grading, or

(e) classification of posts,

an employer shall not discriminate against an employee or prospective employee and a provider of agency work shall not discriminate against an agency worker.”

(4) A person who is an employer shall not, in relation to

employees or employment—

(a) have rules or instructions which would result in discrimination against an employee or class of employees in relation to any of the matters specified in paragraphs (b) to (e) of subsection (1), or

(b) otherwise apply or operate a practice which results or would be likely to result in any such discrimination.”

………..

(6) “Without prejudice to the generality of subsection (1), an employer shall be taken to discriminate against an employee or prospective employee in relation to conditions of employment if, on any of the discriminatory grounds, the employer does not offer or afford to that employee or prospective employee or to a class of persons of whom he or she is one—

(a) the same terms of employment (other than remuneration and pension rights),

(b) the same working conditions, and

(c) the same treatment in relation to overtime, shift work, short time, transfers, lay-offs, redundancies, dismissals and disciplinary measures, as the employer offers or affords to another person or class of persons, where the circumstances in which both such persons or classes are or would be employed are not materially different.”

The complainant is a member of the Sikh faith and wears a turban. He said that while he had no direct evidence of being discriminated against because of his religion, he believes he was treated differently than other employees of the respondent company.   The complainant put forward a number of issues which he alleges constituted less favourable treatment on the grounds of his religion namely:   (i) he was not assigned projects immediately after starting, (ii) given work which didn’t match his skill sets, (iii) excluded from team meetings for up to 6 weeks after joining, (iv) dismissed before the end of the 6 month probation and not given a chance to improve by being placed on a PIP, (v) not given an opportunity to apply for other internal jobs in the company, (vi) asked to return his work permit.   The respondent denies that the complainant was treated differently to other employees in relation to his conditions of employment because he wore a turban or that he was dismissed for discriminatory reasons relating to his religion. It was submitted that the complainant failed to pass his interim probation because of deficiencies in the knowledge and skills required for the role.

Having heard the evidence in relation to these issues, I cannot find any evidence whatsoever of a link between the complainant’s religion and the workplace treatment and dismissal complained of. The complainant is alleging that he was treated differently by the respondent than other employees in relation to his conditions of employment and dismissal and he is asking me to infer from that he was treated like this because of his religion. I note that the Labour Court in the case of Melbury, cited above, stated in relation to the type of facts required to discharge the evidential burden: 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 Labour Court went on to say: 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.

Applying the above jurisprudence to the case herein, I am satisfied that the complainant has failed to provide any facts of sufficient significance to raise an inference of discrimination. I am satisfied his evidence in relation to discrimination on the religion was grounded upon conjecture or mere speculation or assertions. For the above reasons, I find that the complainant has failed to establish a prima facie case of discriminatory treatment on the religion ground in relation to his conditions of employment and dismissal. Therefore, I find that the complainant was not discriminated against on the religion ground.

I find that the complainant was not discriminated against on the religion ground pursuant to Section 8 of the Employment Equality Acts.

Employment Equality Act 1998, Section 6(2)(e) - Discrimination on the religion ground, Section 8 – conditions of employment and dismissal, Section 85A - burden of proof, prima facie case.