Complainant

Respondent

Anonymised Parties

Employee

Employer

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-00027021-001

13/03/2019

The Complainant is seeking adjudication by the Workplace Relations Commission under Section 77 of the of the Employment Equality Act, 1998 and has submitted that he was discriminated against by his employer by reason of his race (CA-00027021-001).

The Complainant commenced employment with the Respondent Company on the 11th June 2018 and was employed as a care assistant on the support/relief panel.

In or about January 2019, a staff member had reported the Complainant to the management and alleged that he had spoken to a service user in an inappropriate manner and had used his personal mobile phone while at work.

The Complainant was contacted by the management and he provided a written account of his recollection of the alleged events and was ultimately informed that no further action would be taken.

A number of weeks after these alleged issues arose, the Complainant was on night duty in a particular unit and was asked by the night duty sister to transfer to another unit. Ultimately, the Complainant agreed but expressed his displeasure about being not being told in advance.

The night duty sister sent a letter to the support team coordinator that the Complainant had refused to carry out his duties in the other unit which the Complainant denies. The Complainant attended a meeting with the support team coordinator which the Complainant felt unnecessary and bullying its in nature.

The Complainant met with the support team coordinator on the   21st of January 2019 and was

informed that all his booked shifts had been cancelled and he was effectively dismissed from his

role. The Complainant was accuse of disregarding service users and using his phone on duty which the Complainant denies.

The Complainant forwarded a Equal Status Acts Notification (ES1) dated the 13th February 2019 and indicated that he had been dismissed on spurious and unfounded allegations on the basis of his ethnicity and religion. Further, the Complainant asked the Respondent to specifically the exact organisation policy contravened and submits they have failed to do so.

The Complainant submits that in light of the Respondents failure to provide this information, he concludes that this was a racially induced conspiracy against him and had nothing to do with the Respondents organisation and procedures.

In the course of the hearing, the Complainant accepted the wrongdoings, in part, however he believed that the Respondent did not abide by its Protection and Policy Procedures because the Complainant was neither white nor Irish. Further, the Complainant submitted that he was not afforded any appropriate grievance procedures as he was neither white nor Irish.

The Complainant arrived in this jurisdiction in 2008 and is currently employed with an agency and is also involved in a four year study program

This Complaint was received by the Workplace Relations Commission on the 11th March 2019.

The Respondent, based in Dublin, is a voluntary organisation providing a wide range of residential, respite and day services to almost 400 children and adults with an intellectual disability and to their families throughout various community locations. This

includes residential places with the remaining places in houses throughout the locality.

The Respondent Company submitted that it is comprised of a multi-national workforce and

is committed to their Equal Opportunity policy and strictly prohibits any form of action that could constitute discrimination. Of the 339 Front Line staff members employed by the Respondent, 35% are non-EU nationals.

The Complainant commenced employment with the Respondent on the 11th June

2018 and was employed as a care assistant on the support/relief panel. The Complainant was therefore employed on a casual “if and when required” basis

The Complainant’s role included, inter alia, to provide support to service users, ensuring adequate and proper support is provided in assisting the individuals undertake their daily lives. Care Assistants are required to support service users achieve positive outcomes and foster strong relationships through frequent interaction. The Complainant, as with other staff, was required to move between the various residential houses as necessitated

by the needs of the service users. Prior to commencing and during his employment the Complainant participated in a number of training and induction sessions.

In December 2018, a number of issues arose regarding the Complainant’s performance, namely in relation to the use of mobile phones while on duty, cooking food for himself whilst on duty, and not engaging with service users. It was further noted by the nurse on duty that the Complainant did not appreciate the requirement to work in different locations based on the needs of our service users and took issue when asked to move between houses.

The support team coordinator, met with the Complainant on the 21st December 2018. At the meeting the aforementioned issues were discussed and support and guidance were provided to the Complainant. A follow-up meeting was scheduled for the 21st January 2019 and the Complainant’s performance was reviewed in the interim period. Between the 21st December 2018 and the 21st January 2019, the Complainant worked on 14 occasions.

The Complainant met with the support team coordinator on the 21st January 2019 and it was explained that a sufficient improvement in his performance had not been evident. In particular, the Respondent found that the level of care shown towards Service Users was lacking and that further instances of mobile phone usage was noted as well as making coffee for himself before taking care of the service users’ needs. The Respondent took the decision to remove the Complainant from the support team panel on this basis and his employment was subsequently terminated.

The Complainant wrote to the Respondent on 23 January 2019 to outline his sentiments with regards the dismissal. Much to the surprise of the Respondent, although not alleging that discrimination had occurred, the Complainant inquired if there was any racially based motive. The Respondent replied to categorically deny that race formed any part of the decision to terminate his employment and reiterated in no ambiguous terms that the decision was solely as a result of the performance issues addressed at the previous meetings.

The Complainant has alleged that he was dismissed for discriminatory reasons relating to the ground of race. The Respondent refutes this allegation in its entirety and contends that the Claimant’s dismissal was for reasons wholly unconnected to his race.

The Respondent submits that the Complainant has failed to discharge the burden of proof and, consequently, the claim cannot succeed. It has been the well-established practice of the Equality Tribunal and the Labour Court to require a Claimant to present, in the first instance, facts from which it can be inferred that he was treated less favourably than another person is, has been, or would be treated, on the basis of the discriminatory

ground cited.

This requirement has been explored in a number of cases including the case of Melbury Developments Limited v Arturs Valpeters (EDA0917) and the Labour Court has stated that its jurisprudence in this matter stems from the Court’s analysis in Southern Health Board v Mitchell, DEE011, [2001] ELR 201, where the Court stated:

“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 those 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”

In Margetts v Graham Anthony & Respondent Limited, EDA038, the evidential burden which must be discharged by the Complainant before a prima facie case of discrimination can be said to have been established was further outlined by the Labour Court. The Labour Court stated as follows:

“The mere fact that the Claimant falls within one of the discriminatory grounds laid down under the Act is not sufficient in itself to establish a claim of discrimination. The Claimant must adduce other facts from which it may be inferred on the balance of probabilities that an act of discrimination has occurred.”

It is submitted that 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. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn.

The Respondent submits that it is only when the Complainant has discharged this burden that the burden shifts to the Respondent to rebut the inference of discrimination raised. The Respondent submits that the Complainant has failed to discharge this burden of proof and, consequently, the claim cannot succeed.

The Respondent submits that without prejudice to the above, the Respondent categorically denies that discrimination has occurred under the grounds cited or any other ground. The Complainant was deemed to have failed to meet the required standard of performance and was dismissed on that basis alone. The Complainant was invited to a review meeting on 21 December 2018 and issues with regards his performance were outlaid to him. An opportunity to correct these aforementioned matters was provided to the Complainant and a further review date was set for the 21st January 2019. However, the Complainant was deemed to have failed to make satisfactory improvements in his performance and the decision was taken to terminate his employment on this basis.

The Respondent’s Code of Conduct is unambiguous in outlining that the needs of the service users are central to a staff member’s duties and obligations. The Code of Conduct explicitly states that employees “are to conduct themselves in a responsible manner at all times, act in the best interests of the vulnerable people availing of the services at the Respondent’s premises house and to comply fully with the policies of the Respondent Company”.

The Respondent submits that the Complainant did not meet these standards of conduct during his employment, despite receiving adequate training from the Respondent. Further,

the demographic breakdown of the Respondent is indicative of the organisation’s adherence to equality of opportunity. The Respondent strictly prohibits any form of

action that could constitute discrimination.

The Respondent further submits that the Complainant has provided no evidence via comparators that the treatment he allegedly received was less favourable to him than to any other person or persons under the ground cited. Thus, the Claimant has provided no evidence of discrimination as required for a viable complaint under the Acts.

The Respondent concluded by stating that the Complainant has not provided primary facts in relation to the grounds claimed on which to proceed with a viable complaint. The established practice is to expect that the Complainant will, in the first instance, succeed in

transferring the burden of proof to the Respondent by presenting primary facts on

the grounds claimed. In Dublin Corporation v Gibney, EE5/1986, prima facie evidence

was defined as “evidence which in the absence of any credible contradictory evidence by the employer would lead any reasonable person to conclude that discrimination has occurred”. The Respondent in this instance has provided significant credible contradictory evidence, which would clearly lead a reasonable person to conclude that no discrimination took place. It is the Respondent’s position therefore that the Complainant has failed to establish a prima facie case.

However, if it is deemed that a prima facie case has been established, the Respondent submits the Complainant has failed to prove that he has been treated any less favourably than another person is, has or would be treated in a comparable situation on the ground specified in section 6(2)(g) of the Employment Equality Acts 1998 to 2015. The Complainant has adduced no grounds to imply discrimination. As stated previously, the mere fact that the Complainant may fall within one of the discriminatory grounds laid down under the Act

is not sufficient in itself to establish a claim of discrimination and accordingly the claim fails.

In the circumstances of this matter, I have carefully listened to the evidenced tendered in in the course of this hearing by both parties.

Section 6 of the Equality Act provides:

6.—(1) For the purposes of this Act, discrimination shall be taken to occur where, on

any of the grounds in subsection (2) (in this Act referred to as “the discriminatory

grounds”), one person is treated less favourably than another is, has been or would be

treated

(2) As between any 2 persons, the discriminatory grounds (and the descriptions of

those grounds for the purposes of this Act) are –

(h) that they are of different race, colour, nationality or ethnic or national origins (in

this Act referred to as “the ground of race”)

In order to determine whether the Complainant has established a prima facie case, a three tier test is generally employed. The Complainant must first establish that they are covered by the relevant discriminatory ground, secondly they must establish that the specific treatment alleged has actually occurred and thirdly it must be shown that the treatment was less favourable that the treatment which was or would have been afforded to another person in similar circumstances not covered by the relevant discriminatory ground

Further, Section 85A of the EEA 1998-2011 sets out the burden of proof which applies to claims of discrimination. It provides, in effect, that where facts are established by, or on behalf of, a complainant from which discrimination may be inferred, it shall be for the respondent to prove the absence of discrimination. The test for applying that provision is well settled and it requires the complainant to prove the primary facts upon which they rely in seeking to raise an inference of discrimination. It is only if this initial burden is discharged and the Adjudication Officer is satisfied that the facts as established are of sufficient significance to raise a presumption of discrimination, that the burden of proving that there was no infringement of the principle of equal treatment passes to the respondent. The appropriate test for determining is that if the complainant does not discharge the initial probative burden required the case cannot succeed.

It is now well accepted that the first requirement for a successful claim lies in establishing a prima facie case. In that regard, I am conscious of the Labour Court’s comments in examining the circumstances in which the probative burden of proof applies in employment equality cases. In the case of Dyflen Publications Limited and Ivana Spasic (ADE/08/7) the Court adopted the approach of Mummery LJ in Madrassy v Nomura International plc [2007] IRLR 246, and stated that

“… the court should consider the primary facts which are relied upon by the Complainant in their proper context. It also indicates that in considering if the burden of proof shifts the court should consider any evidence adduced by the Respondent ..”.  

In establishing the facts to meet the 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 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.”

Further, in Valpeters v Melbury Developments Limited [2010] ELR 64 it is stated 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. 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.

In the circumstances of this matter and in consideration of the evidence adduced from the Complainant and the Respondent, I have to find that the Complainant has not discharged the initial probative burden in respect of the allegation of discrimination by reason of race.

In particular, in coming to this decision, I have noted the acknowledgment on the behalf of the Complainant in relation to the various wrongdoings, in part, highlighted in the courses of his employment with the Respondent. In that respect the Tribunal notes the Respondent’s Code of Conduct is unambiguous in outlining that the needs of the service users are central to a staff member’s duties and obligations and explicitly states that employees “are to conduct themselves in a responsible manner at all times, act in the best interests of the vulnerable people availing of the services at the Respondent’s premises house and to comply fully with the policies of the Respondent Company”

Further, the Complainant, in the course of his evidence placed more reliance upon the Respondent’s alleged failure to abide by its only policies and procedures and in that respect this complaint is misconceived.  

In the circumstances of this case, I conclude that no prima facie case exists.

I have anonymized the names of the parties   due to the sensitive nature of the Respondent’s role in the various community locations.

I find that the Complaint (CA-00027021) made pursuant to Section 77 of the Employment Equality Act, 1998, fails.