Complainant

Respondent

Parties

Iulian Cosmin Predoi

Hays Specialist Recruitment

Representatives

Darragh Whelan, IBEC

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-00028001-001

27/04/2019

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

CA-00028002-001

27/04/2019

The Claimant is employed by the Respondent to work in the role of Content Review Associate as an agency worker with a company referred to hereinafter as the Hirer. The Claimant alleges that he was discriminated against by his employer on the grounds of race because of overhearing a racial slur made by his team leader towards another team member. The team leader was an employee of the Hirer.

The Respondent is a specialist recruitment agency and managed service provider operating worldwide. The Respondent has a Service Level Agreement (SLA) with the Hirer that provides that for all matters relating to Dignity at Work the Hirer’s policies are to be utilised. The incident referred to above was brought to the attention of the Respondent by the Claimant and his colleagues. In turn, the matter was brought to the attention of the Hirer by the Respondent. Although the complaints were upheld, and the team leader was sanctioned, the Claimant was not advised of the nature of the sanction and was required to continue working with the team leader for a further 5 months until she resigned.

CA- 00028001

The Claimant submits that on 8th March 2019 he was present when an incident occurred while working at the business of the Hirer. On that day he describes that his team leader interjected in a conversation about a dentist who was a Romanian national and that she referred to this individual as “a gypsy”.   The Claimant and a number of team members present were also Romanian. He described that when she was challenged by a member of management present, she apologised that she hadn’t realised that the Romanian team were present. The Claimant described how he found the matter very offensive at the time, and how he was shocked and humiliated to have been a victim of racism in a company which is involved in fighting racism on a daily basis. He brought the matter to the attention of the Respondent; and his colleagues who were present during the incident also made complaints to the Respondent within the same broad timeframe.

He confirmed that the Respondent, in turn, brought the matter to the attention of the Hirer and that an investigation had been carried out. He expressed concern at the delay in dealing with the complaint. He confirmed that an investigation was carried out by the Hirer and that the allegations were upheld.

He also confirmed that a representative of the Hirer met with complainants and advised them of the outcome of the investigation and that a disciplinary sanction had been applied.   He expressed concern that he had not been told the details of that sanction. He highlighted the fact that he and his co-complainants had asked that the team leader be moved from having responsibility for that team, but this did not occur. As a consequence, he advised that he and his colleagues were left with no option but to continue to work under the direction of the team leader up until she left the Hirer’s employ, approximately five months later. He described his discomfort at being left in this position. In this context he submits that he was discriminated against on the grounds of race.

CA-00028002

The Claimant outlined the same issues and sequence of events in relation to this complaint and advised that the only grounds under which he was taking a case of discrimination was on the grounds of race.

The Respondent confirmed that the Claimant was an agency worker employed by them to work at the business of the Hirer as a Content Review Associate. The Respondent submits that both the Respondent and the Hirer have robust policies and procedures in place to prevent harassment in the workplace and acted expeditiously to address the issues raised by the Claimant. The Respondent outlined that Content Review Associates are hired primarily for their language skills and are comprised of individuals from diverse backgrounds, races and cultures. In this context they advise that both the Respondent and the Hirer take matters of diversity and inclusion seriously. In support of this position the Respondent advised that the Claimant was required to undertake training in the Code of Business Ethics, Zero Tolerance for Sexual Harassment, Unconscious Bias, IT Security, Standards of Conduct, Wellness and Speaking up, upon commencement of employment.

The Respondent submits that the incident under consideration occurred on 8th March 2019 and was brought to the Respondent’s attention on 15th March by the Claimant. A meeting to discuss the matter took place between the Respondent and the Claimant on 19th March and subsequently the Respondent received 3 further complaints relating to the same incident from colleagues of the Claimant. Following meetings with each complainant the Respondent provided the Hirer with details of all complaints and in accordance with the SLA between the parties the Hirer undertook to establish an investigation into the matter.

The Claimant wrote seeking an update from the Respondent on 4th April and a written response issued to the Claimant on the same day advising him that the matter had been handed over to the Hirer and that an update would be given in due course. The Respondent wrote further to the Claimant on 18th April to inform him that the investigation had commenced. On 23rd April the Respondent wrote again to the Claimant seeking his agreement to provide the Hirer with his personal contact details so that he could be contacted regarding the outcome of the investigation.

The Respondent submits that the investigation concluded at the end of April and that the allegations were upheld. The Respondent further submits that the Hirer took a decision to progress the matter through the disciplinary procedure and a sanction was issued to the offending employee. The Respondent advised that the Hirer had met with all agency staff who had lodged complaints and advised them that the allegations were upheld, that the disciplinary procedure had been invoked, that a sanction had been issued and that staff in the area were required to attend further training under the “Conduct Counts” initiative.

Taking the above into account the Respondent contends that both the Respondent and the Hirer acted expeditiously to investigate the complaints and communicated well with the Claimant throughout the process. The Respondent contends that the Hirer acted within the terms of the SLA and their own policy in carrying out a fair hearing and in addressing the outcome of that investigation with the offending employee. The Respondent further contends that both the Respondent and the Hirer had sufficient preventative measures in place to prevent harassment and adequate remedial action was taken by the Hirer in this particular instance to prevent recurrence of harassment. In the context that the matter was resolved internally, that the Claimant continues to work in the same team, further training in dignity at work has been provided and no further incidents have occurred the Respondent submits that no award is owing in this case.

CA-00028001

I have to decide if the Claimant was discriminated against on the grounds of race.

The Claimant submits that the Team Leader (an employee of the Hirer) made a comment of a racial nature to another colleague which was overheard by the Claimant and that this and the subsequent handling of the outcome of the investigation into complaints regarding the matter constitutes discrimination under the Employment Equality Act on the grounds of race. While the Claimant accepts that the Hirer conducted an investigation into the matter and upheld the complaint he points to areas of concern such as delays in the investigation, the fact that the Team Leader continued to work with the Romanian team after the investigation and the fact that he was not advised of the nature of the sanction applied to support his case of discrimination against the Respondent.

Both parties agree that the incident of 8th March 2018 occurred, and this was confirmed by the fact that the Hirer’s investigation upheld the complaint in that regard. It was evident that the Claimant was sincere in describing the impact that the behaviour had on him and that he found that behaviour to be degrading and humiliating.

Section 15 (1) of the Employment Equality Act states that “Anything done by a person in the course of his or her employment shall, in any proceedings brought under this Act, be treated for the purposes of this Act as done also by that person's employer, whether or not it was done with the employer's knowledge or approval.”

The contention that the team leader uttered a racial slur is not in dispute and I found the Claimant to be credible in relation to the impact that this behaviour had on him.   Both the behaviour of the team leader and it’s impact does fall within the definition of discrimination within the Act. There is no requirement in the Employment Equality Act for there to be a series of repeated behaviours therefore a single incident can breach the Acts.

Section 15(3) of the Employment Equality Acts states that  “In proceedings brought under this Act against an employer in respect of an act alleged to have been done by an employee of the employer, it shall be a defence for the employer to prove that the employer took such steps as were reasonably practicable to prevent the employee—

(a) from doing that act, or

(b) from doing in the course of his or her employment acts of that description.”

Both parties accept that the matter was brought to the attention of the Respondent on 15th March and that a meeting was held between the Respondent and the Claimant on 19th March. Following that meeting complaints were received from other members of the team and meetings also held. The complaints were issued to the Hirer in late March and email correspondence of 4th April to the Claimant supports this contention.

Both parties accept that the Hirer conducted an investigation in accordance with the SLA and their policy throughout the month of April. Both parties also accept that the investigation was concluded by end of April and that the Hirer met with all complainants to advise them of the outcome and actions arising.

Both parties also agree that the Hirer had policies in place in relation to behaviour in the workplace and provided training to all staff in relation to those policies. It is also accepted by the parties that the Hirer met with the complainants at the conclusion of the investigation, advised them that the complaints had been upheld, advised them that the disciplinary procedure had been invoked and that a sanction had been issued to the offending employee. The Respondent advised that, in addition, the Hirer required all staff in the area to undergo further training under the “Conduct Counts” training initiative.   The Claimant confirmed that this had occurred and that he and the other complainants had attended the programme. The Respondent also confirmed that there had been no further instances of inappropriate behaviour by the Team Leader during the 5 months up to her resignation.

As stated earlier Section 15 gives an employer a defence if it can prove that it took such reasonable steps as are practicable to prevent inappropriate actions by employees. From the direct evidence given at the hearing I am satisfied that the complaint raised by the Claimant in relation to the incident of 8th March 2019 was dealt with in accordance with the Respondent’s SLA and with the policy of the Hirer. I am also satisfied that there was no undue delay in conducting this investigation.   The policies and the significant training and awareness raising initiatives undertaken by the Respondent were effective in terms of enabling staff to raise issues of concern and I note that subsequent to the outcome of the investigation further “Conduct Counts” training was put in place. I also note that when the internal investigation upheld the complaints against the Hirer’s employee she was sanctioned for the inappropriate behaviour.

Notwithstanding the concern of the Claimant that he was not advised of the details of the sanction and that he had to continue working with the Team Leader I am satisfied that sufficient steps were taken by the Hirer to promote appropriate behaviour in the workplace after the investigation and that sufficient sanction was applied that resulted in no further breach of the standards of conduct throughout the remainder of the Team Leader’s employment.

I am therefore satisfied that the Respondent can rely upon the defence of Section 15 of the Act and find that the Claimant was not discriminated against on the grounds of race.

CA-00028002

The Claimant submitted no separate case under this complaint and in this context, I find that he did substantiate a case of discrimination against the Respondent.

I have investigated the above complaint and make the following decision in accordance with Section 79 of the Act that:

In relation to CA-00028001 the Claimant has failed to establish a prima facie case of discrimination on the grounds of race and therefore it is my decision that the Complainant was not discriminated against.

In relation to CA-00028002 in the absence of any other substantive claim the decision is as set out at CA-00028001 above

Discrimination; agency worker, racial slur