Complainant

Respondent

Anonymised Parties

Security Guard

Retail Company

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-00030893-001

13/09/2019

The complainant was employed as a security guard (Loss Prevention Officer – LPO) with the respondent company. He worked 30 hours per week and he was paid €703.00 gross per fortnight. He commenced working with the respondent in October 2016 as a sales associate and was appointed to the post of LPO in June 2018. The complainant claims he was discriminated against by the respondent by reason of his race in relation to promotion. The complaint was received by the Workplace Relations Commission on 13 September 2019. The most recent date of discrimination recorded on the complaint form is 10 September 2019.

The respondent denies the complainant was discriminated against on the ground of race or any other ground.

The complainant commenced work as a sales associate with the respondent company in 2016 and was based at a store outside the city centre. In early 2017 the complainant moved to a new address and due to his increased travel time, he applied for a transfer to a city centre store. He was not offered a transfer.

In May 2018 the respondent advertised vacancies for security guards (Loss Prevention Officer – LPO) in one of their city centre stores. The complainant was appointed to the post of LPO but was asked to continue working at the store outside the city centre. In September 2018 he moved address a second time and again asked for a transfer. Despite being promised a transfer within a month he was not transferred to another store.

In April 2019 several other LPO’s left and as a result the complainant was assigned to work moving between stores in different locations including the city centre. Around that time, he became aware, by accident as there was no internal communication, that the respondent was recruiting people to fill Loss Prevention Advisor (LPA) vacancies in its camera surveillance team. The LPA post is a promotional post. The complainant states that internal applicants may apply for promotional posts by an making an expression interest to their manager or the manager may approach an employee and invite him or her for interview.

The complainant states that all LPOs, other than himself and two other persons of coloured ethnicity, were approached by management about the LPA promotional posts. All those approached by management were promoted, even those with no guarding experience. The complainant on hearing about the LPA posts approached two managers and expressed his interest in being considered for promotion. He received a non-committal response of “we will get back to you” but he heard nothing further. In August 2019 he checked back with the manager and was told that the hiring for the LPA posts was over.

Later that month, on 17 August 2019, the complainant saw an external advertisement online for LPA posts with the respondent. He applied online to create a record and ensure a call for interview. He tried to contact his manager several times between 19 and 29 August 2019 to follow-up on his application.   Eventually he met with his line manager on 10 September 2019. The manager was impressed with the complainant’s performance, but he could not offer him the post of LPA as he felt that he was not ready for the job.   The complainant claims he was discriminated against by the respondent regarding promotion on the ground of race.

The complainant submitted a second document to the Workplace Relations Commission on 08 November 2019. In the second document the complainant includes an account of events that occurred after he submitted his complaint to the Workplace Relations Commission.

The complainant consulted a solicitor. On 16 September 2019 the solicitor wrote to the respondent setting out a complaint of discrimination regarding the LPA post. The solicitor requested that the matter be resolved internally. The complainant met with his manager, Mr X, on 23 September 2019 and was promised an interview for the LPA post. The following day the complainant again met with Mr X and on this occasion he asked about his visa to work in Ireland.  

On 30 September 2019, Mr X met the complainant again and asked him about his visa. The complainant states that Mr X didn’t answer his question about the date for interview. Later that day the complainant was called to an interview on 07 October 2019. The complainant was successful at the first interview and was called to a second-round interview on 10 October 2019. He was not successful at the second interview.

The complainant states he received a warning that if his visa was not renewed the respondent would take disciplinary action for misconduct/gross misconduct. He attended disciplinary hearings on 17October 2019 and again on 19 October 2019. He states he was fired from his employment in the middle of his shift even though his visa had not expired at that time. He states the respondent never intended to give him promotion.

The respondent operates retail outlets across Ireland and is a subsidiary of a company which employs a multi-national workforce across Europe, United States, Canada and Australia.   The respondent states it applies the highest standards in terms of dignity and inclusivity in the workplace.

In the first half of 2019 the respondent advertised three Loss Prevention Advisor (LPA) posts at different store locations. The posts were advertised internally and externally. The respondent used an internal mailing system, available to all employees, to advertise the LPA posts. Three internal applicants were successful, and they took up the LPA posts on 15 July 2019.

Shortly after the three post were filled in July 2019 another post was advertised at (named) store.   Employees may apply for advertised posts by making an expression of interest to their direct line manager and request their manager’s support for their application. On 26 August 2019 the complainant sent a WhatsApp message to his manager, Mr X, stating he was interested in the LPA post. Mr X replied on 29 August 2019 stating he would discuss the role with the complainant the following week. On 04 September 2019 Mr X advised the complainant they would discuss the LPA vacancy at the complainant’s mid-year performance review.

The mid-year performance review took place on 10 September 2019. The manager supported the complainant in his decision to apply for the LPA post. He reviewed the complainant’s performance and identified areas where he would need to improve to be a better candidate for the LPA post. The complainant was advised that he would be invited to interview for the LPA post within the coming weeks.

It is the respondent’s position that the complainant expressed interest in the post advertised in July 2019. The respondent is not aware of the complainant expressing interest in the posts advertised earlier in 2019 and there is no record of the complainant having done so.

On 16 September 2019 the respondent received a letter from a solicitor acting on behalf of the complainant. The letter contained allegations of discrimination on the grounds of race in relation to the LPA post.  The letter also informed the respondent that the complainant had submitted a complaint to the Workplace Relations Commission. The respondent submits the complaint was submitted entirely without merit in circumstances where the respondent was actively engaging with the complainant about his expression of interest in the LPA post. The respondent has in place an Equal Opportunities Policy and a grievance procedure. The complainant did not raise any grievance with the respondent before making his complaint to the Workplace Relations Commission.

Mr X met with the complainant on 23 September 2019. He gave the complainant a letter responding to the issues raised by his solicitor.   The response noted that the complainant’s first expression of interest in the LPA post was received by way of WhatsApp on 26 August 2019. Further the matter had been discussed at their meeting of 10 September 2019 when the complainant had been told he would be invited to interview in the coming weeks. The complainant was requested to use the grievance procedure to resolve the matter.   The complainant did not avail himself of the grievance procedure.

The complainant was interviewed for the LPA post on 07 October 2019 by another manager, Mr Z.   He was successful in passing this part of the recruitment process and was called for a second interview with Mr Y on 10 October 2019. The complainant was unsuccessful at the second interview. The following day Mr Y met with the complainant to offer him feedback on his interview. Mr Y had to ask the complainant to leave the meeting when he became heated and aggressive.

The respondent submits that the complainant has not been discriminated against on the ground of race or on any other ground. Further, the respondent submits the complainant has not provided evidence of any relationship or link between his race and the decision not to promote him to the LPA role.

The complainant’s submission of 08 November 2019 includes an allegation that he was fired from his employment. The respondent submits this is an entirely separate claim which is not before the Adjudication Officer. Without prejudice to the forgoing the respondent provided an account of events leading to the termination of the complainant’s employment.

Legal Submission

Preliminary Issue – The respondent submits the Adjudication Officer’s jurisdiction is limited to events prior to the date the complaint of discrimination was received by the Workplace Relations Commission. The statement that the complainant was fired, made in the document received on 08 November 2019, is an entirely separate claim relating to different legislative provisions. The allegation of unfair dismissal is denied in full by the respondent. The respondent requested a preliminary ruling on this matter.

The respondent denies that the complainant was discriminated against on the ground of race by not being promoted in contravention of Section 6(2)(h) of the Employment Equality Act.

The respondent notes that the complainant has not provided a comparator. It is not known who he compares himself to when he alleges he received less favourable treatment.

It is submitted that in accordance with Section 85A of the Employment Equality Act the onus is on the complainant to establish a prima facie case of treatment contrary to the Act.   Only if these primary facts are established can the onus shift to the respondent to prove that there was no discrimination.

The respondent relies on the decisions of the Labour Court in Mitchell v Southern Health Board [2001] 12 E.L.R. 201 and Melbury Developments Limited v Valpeters [2010] E.L.R. 64 and submits that the respondent has not reached the standard required to establish a prima facie case. The respondent states the complainant’s submission is made up of mere speculation or assertions, unsupported by evidence which cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. It is the respondent’s position that the complainant was not discriminated against on the ground of race or on any other ground of discrimination. He was a valued member of staff who was at all times treated with the upmost respect in the workplace.

CA-00030893-001

Preliminary Issue

The respondent raised a preliminary issue about the allegation, contained in the complainant’s submission of 08 November 2019, that he was fired from his employment. Due to an administrative error this issue was not filed as a separate complainant. After the hearing I became aware that the complainant had filed a fresh complainant with the Workplace Relations Commission dealing with this issue.   This complaint will be dealt with in separate proceedings, without prejudice to the rights of either party to be heard and to present any evidence relevant to that complaint. I will now deal with the complaint of discrimination on the ground of race in relation to promotion.

Burden of Proof

The complainant brings his claim that he was discriminated against on the ground of race under Section 6(2)(h) in relation to his application for a promotional post with the respondent. Section 85A of the Act provides:

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.

The complainant must prove, on the balance of probabilities, the primary facts on which he relies in seeking to raise a presumption of unlawful discrimination.   It is only if those primary facts are satisfactorily established and they are of sufficient significance to raise a presumption of discrimination that the onus shifts to the respondent to prove the contrary. (Mitchell v Southern Health Board 2001] 12 E.L.R. 201). The Labour Court in Melbury Developments Limited v Valpeters [2010] E.L.R. 64 held that the facts must be established on credible evidence. I must consider whether the complainant has established facts on credible evidence from which discrimination may be presumed.

Evidence

The complainant gave evidence outlining his claims as set out in the complaint form. In addition, he stated that at a staff meeting everybody was told that LPA posts would be coming available. He did not see the posts advertised as he claimed he did not have access to the internal mail system. He stated that as he was interested in the promotional posts, he spoke to his line manager, Mr X, by phone on 13 May 2019. Mr X was to get back to him. He then spoke with Mr Y on 11 June 2019 and again he was told he would get back to him.   He stated that neither manager got back in touch with him.

The respondent denies that the complainant made any expression of interest in the three LPA posts advertised in early 2019. There is no record of any expression of interest being received from the complainant.   In response to questions from counsel for the respondent the complainant could not remember if he had used the words “expression of interest” in conversation with either manager.

The complainant stated that all LPO’s other than himself and two others of coloured ethnicity were approached by their manager and were promoted.   However, he offered no evidence to support this statement.  

The respondent denies that any manager approached any LPO about the LPA posts. Promotional posts are advertised on an internal mail system.   All staff must go through a selection process before being appointed to a promotional post.

The respondent maintains a structured communications system which requires managers to make notes of meetings with staff. The complainant and his manager, Mr X, had an informal meeting on 25 June 2019. A copy of the manager’s note of that meeting was provided with the submission. Mr X noted that he offered the complainant a full-time contract working 37.5 hours per week. The complainant declined the offer of a full-time contract because he had matters to arrange about his visa. There is no note of the complainant expressing interest in the LPA posts at this meeting. The complainant did not mention this meeting in his submission. Mr X ends the note stating the complainant was to get back to him if he changed his mind about accepting the full-time contract.   I find it inconsistent that the complainant would not discuss the LPA post at this meeting since he claimed he had expressed interest in promotion on two earlier dates in May and June.

In August 2019 the complainant saw an external advertisement and he made an online application. He stated he was not interviewed until 07 October 2019 and he believed this was arranged because he had submitted his complaint to the Workplace Relations Commission on 13 September 2019.

The respondent appointed three internal candidates to LPA posts in July 2019 following a selection process. Another LPA post was advertised in August 2019. The respondent acknowledges that the complainant made an expression of interest by way of a WhatsApp message to Mr X on 26 August 2019. I am satisfied, on the evidence presented, that the first time the complainant made an expression of interest in an LPA post was in August 2019.

The respondent’s manager was away when the WhatsApp message was sent but he responded within three days and committed to discuss the matter with the complainant the following week. The discussion took place on 10 September 2019 at the complainant’s mid-year performance review. A copy of the review document was provided with their submission. The respondent states that the complainant was told at the review meeting that he would be called for interview. Mr X supported the complainant’s application for the LPA post. Mr X was not involved in the interviews.

The meeting of 10 September 2019 was a mid-year review not an interview. In response to questions from counsel for the respondent the complainant agreed that he had an expectation of being offered the LPO position at that meeting. The respondent’s submission set out details of the recruitment and selection process which includes interviews and feedback to all candidates whether they are successful or unsuccessful. Appointments to posts are made using this process not otherwise.

The complainant stated that all LPO’s were promoted except him and two other persons of coloured ethnicity. However, he offered no evidence to support this statement. The respondent rejects this statement in full.

The respondent stated that three people were appointed to LPA posts on 15 July 2019 following a selection process. The complainant was not a candidate for those posts. Another LPA post was advertised in July 2019 and this was the one that the complainant expressed his interest in and was interviewed for in October 2019. The respondent wholly refuted the claim that it engages in race-based discrimination.   It has over 1,300 employees in Ireland who come from various ethnic backgrounds. The respondent submits it is an equal opportunities employer and is fully committed to providing equal opportunities to all its employees and to providing a workplace free from discrimination. The respondent provided copies of their Equal Opportunities Policy and their Grievance Policy with their submission.

Conclusion

I am satisfied, on the evidence presented, that the first time the complainant expressed interest in the promotional LPA post was in August 2019. This expression of interest was for the post advertised in July 2019.   The complainant was interviewed for this post and was successful in getting to a second interview. He was not successful at the second interview.   The notes of the interviews were provided with the respondent’s submission.

The complainant stated that he expressed interest in an LPA post in May and June 2019 but at a meeting on 25 June 2019, where he was offered and rejected a full-time post, he did not raise his interest in the LPA post. This supports my finding that the first expression of interest the complainant made in an LPA post was in August 2019.

The complainant attended his mid-year review meeting with his manger on 10 September 2019. I am satisfied, based on his response to questions, that he had an expectation of being offered the LPA post at that time.

The respondent has a grievance policy in place, but the complainant chose not to use this to raise his complaint about discriminatory treatment.

The complainant alleged that all other LPO’s were promoted except himself and two other persons of coloured ethnicity. However, no evidence to support this allegation was presented. The respondent rejected this allegation.

I am satisfied that the complainant has not, on the balance of probabilities, established facts from which it may be presumed that there has been discrimination in relation to him on the ground of race. He did not establish a link between race and the respondent’s decision not to promote him to the LPA role. He has not met the requirements of Section 85A of the Employment Equality Act in order to shift the onus of proof to the respondent. I am satisfied, on the balance of probabilities, that the complainant was not discriminated against by respondent on the ground of race.

CA-00030893

I find that, on the balance of probabilities, the complainant has not established facts from which it may be presumed that there has been discrimination in relation to him on the ground of race. I find the complaint is not well founded and that the complainant was not discriminated against on the ground of race relating to promotion.

Race

Discrimination

Promotion