Complainant

Respondent

Anonymised Parties

Technical Support Advisor

IT Services Provider

Representatives

Self-Represented

Mr. David Pearson, J.W. O'Donovan Solicitors

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-00027783-001

16/04/2019

The Complainant commenced employment with the Respondent on 16th May 2018. At all times her role was that of Technical Support Advisor. The Complainant’s employment was terminated by the Respondent on 14th November 2018. On 16th April 2019 the Complainant lodged the present complaint with the Commission. The Complaint alleged that the Complainant had been discriminated and victimised on the grounds of race. A hearing in relation to these matters was convened and finalised on 24th February 2020.

At the hearing the Complaintant requested that the parties be anonymised in the published decision. Given that the Respondent did not object to this application, I have decided to exercise my authority to anonymise the names of the parties in the published decision.

Both parties submitted extensive written submission prior to the hearing and availed of the opportunity to question evidence as presented.

The complaint form as issued to the Commission indicated that that the Complainant alleged “victimisation” and “discrimination” on the grounds of race. In relation to the discrimination claimed, a box was ticked to allege that this took the form of a failure to provide training. In the “Complaint Specific Details” section of the form, the Complainant set out a lengthy description of her claim and the factual basis of the same.

During the hearing, it became apparent that the case the Complaint was presenting was in fact one of discriminatory dismissal only. Given that the relevant box had not been ticked, the Respondent submitted that this complaint was not properly before the Commission and I had no jurisdiction to hear the same. The Respondent further submitted that as the matter of discriminatory dismissal had only been raised at the hearing, it was in fact statute barred.

A similar matter was considered in some length by the Supreme Court in the matter of County Louth Vocational Educational Committee -v- Equality Tribunal, [2016] IESC 40.

Here the Court stated that,

“I agree with the view that there is nothing sacrosanct about the use of an EE1 Form to activate the jurisdiction of the Tribunal. I see no reason why any method of written communication could not, in principle, serve the same purpose;”

In the present case, the Complaint form as presented clearly outlines the case that the Complaint set out at the hearing of the matter. Indeed, the first line in the “Complaint Specific Details” area alleges “Discrimination, Victimisation and Constructive Dismissal”. The Compliant then goes on to describe the events immediately precipitating her dismissal. In this regard I am also cognisant of the fact that the Complainant’s failure to tick the box marked “discriminatory dismissal” in no way impeded the Respondent in mounting a full and robust defence to the claim. As such, it is clear that the Respondent suffered no detriment as a result of the Complainant’s failure to tick the correct box on the complaint form.

In light of the foregoing and the case law cited, I find that the complaint presented by the Complainant on the complainant form was in fact one of discriminatory dismissal and I accept jurisdiction to hear the Complainant’s complaint.

The Complaint commenced employment on the 16th May 2018. At all times, her role was that of Technical Support Advisor. This role involved the Complainant worked exclusively from her home, with all interactions with customers and management taking place over the phone or by other electronic means.

The Complainant submitted that she performed extremely well at the outset of her employment. In this regard, the Complainant opened a number of random evaluations conducted on her calls near the commencement of her employment. These evaluations demonstrated that the Complainant general was deemed to “meet expectation” with a minority of matters being deemed to “need improvement”. Further to these random evaluations, the Complainant had numerous one-to-one meetings with her line manager. During these meetings the Complainant’s line manager assured her that she was doing well and implied that her continued employment with the Respondent was secure. Notwithstanding the same, in September 2018 the Complainant was placed on an action plan in relation to her failure to meet some department goals. Whilst the Complaint believed that she continued to perform well in her role, she accepted that some aspects of her performance could be improved upon and she welcomed the opportunity to do so. Following the action plan, the Complainant was placed on a 5-week Performance Improvement Plan (PIP). This PIP set out five areas that requirement improvement. Again, the Complainant believed that she was performing well in her employment but recognised that some areas of her performance required improvement and she was willing to work with the Respondent to resolve the same.

The Complainant believed that her relationship with the Respondent changed following a meeting on 25th October 2018. This was a standard group meeting for the Complainant’s team. At this time, the Complainant’s line manager was on annual leave and different manager acted as a temporary chair of the same. Toward the end of this meeting, a colleague of the Complainant’s advised that the team’s informal messaging service would be disbanded, and that they would be subsumed into a larger inter-team group. The Complainant, along with a number of her colleagues, expressed her misgivings in relation to the same, however they were informed that the decision stood.

Following this meeting, the Complaint noticed a significant change in her line manager’s attitude towards her. On his return from annual leave, the Complainant’s line manager cancelled his scheduled one-to-one meetings with the Complainant. When he emailed the results a performance update for two weeks of the PIP, the numbers were manipulated to demonstrate poor results on her behalf.

On 12th November, the Complainant received an invite to a probationary review meeting that was scheduled to proceed on the 13th November. During this meeting, the Complainant’s line manager advised that she failed her probation on the grounds of her performance. This came as a surprise to the Complainant as she had previously been informed that she would likely pass her probation if she did not have any incidents of absence.

On 20th November, the Complainant elected to appeal this decision, in line with the Respondent’s internal policy. The grounds for said appeal were that the process was inconsistent, that she had been misinformed in relation to the criteria to be used and that the process was tainted by discrimination. In relation to the last point, the Complainant believed that she, and another person of the same race, had been dismissed for raising issues during the meeting of the 25th October. This constituted discrimination as other persons raised issues at that meeting and apparently did not face any sanction.

Following an appeal hearing on 17th December 2018, the Complainant was informed that the discriminatory grounds raised at appeal were unfounded as her line manager was not aware of the meeting of the 25th October and this did not influence his decision-making process in any way. Notwithstanding the same, the Complainant was informed that she “did not receive the level of documented coaching and support typical to an Advisor at her performance level”. In light of the same, the outcome of the appeal was that the Complainant should return to work on a new probationary period of six months.

While the Complainant stated that she was initially pleased with the outcome, she was disappointed that the discriminatory allegations were not upheld and that she would have to return to work on a new probationary period. Following a period of reflection, the Complainant elected not accept the Respondent’s offer of re-instatement and her employment remained terminated.

In summary, the Complainant stated that she felt that the Respondent had dismissed her due to her raising issues regarding the team group chat. She stated that this constituted discrimination as other persons had spoken up at that meeting and had not faced any sanction.  

At the outset, the Respondent categorically denied that they had discriminated against the Complainant at any stage.

As with all new employees, the Complainant’s employment was subject to her completing a six-month probationary period. The Complainant’s employment, and this probationary period, commenced on 16th May 2018. During this period, it became evident that the Complainant was not meeting set department goals. To address the same, a development meeting was arranged for the July 2018. When there was no discernible improvement in the Complainant’s performance, a further meeting was arranged for August 2018, with an action plan put into place for September 2018. When it became apparent that the Complainant was still not meeting the department’s goals, she was placed on a five-week performance improvement plan (PIP) with clearly identified goals and objectives.

Following the completion of the PIP, the Complainant was invited to a probationary review meeting on 13th November 2018. On 14th November, the Complainant was advised that due to her failure to meet the Respondent’s set targets, and in light of the outcome of the PIP, she was deemed to have failed her probation on the grounds of performance and her employment was duly terminated.

One week later, on 20th November 2018, the Complainant elected to appeal this sanction. Here, for the first time, the Complainant alleged that the decision to dismiss was tainted by discrimination. The Complainant also alleged that the process utilised in assessing her performance was inconsistent and that she had been misinformed throughout the process. Regarding the first allegation of discrimination, the Complainant was invited to expand upon the same during a meeting held on 17th December 2018. Here, the Complainant alleged that she had raised issue with an internal team messaging service being disbanded during a meeting of 25th October 2018. It was the Complainant’s view that following this meeting her line manager had treated her less favourably and ultimately dismissed her on foot of the same. She alleged this constituted discrimination as other persons of different racial backgrounds also raised issue at that meeting and did not face any sanction. Following this meeting, the area manager arranged an interview with the Complainant’s line manager and put this allegation to him. By response, the Complainant’s line manager stated that he was on annual leave during the period in question and was not aware of what occurred during that meeting. He further stated that as he had no knowledge of what transpired at that meeting he could not have used it to treat the Complainant less favourably. In addition to the same, the Complainant’s line manger stated that the dismissal of the Complaint took place following a lengthy process whereby the Complainant was set clearly identified, objective goals. He stated that the decision to dismiss the Complainant was taken due to her poor performance and no other reason.

Following receipt of this information, the Respondent’s area manager found that the discriminatory element of the appeal to be unfounded. Notwithstanding the same, the area manger further found that the Complainant’s line manager failed to log certain training calls in the Complainant’s file in contravention of internal policy. As the internal policy had not been followed in this regard, he found that the Complainant’s employment should be re-instatement subject to a full probationary period. When the Complainant was informed of the same, she declined the offer of re-instatement and her employment remained effectively terminated.

In summary the Respondent again denied discriminating against the Complainant at any stage during her employment. They denied that what transpired on the meeting of the 25th October had any bearing whatsoever on the decision to dismiss. In this regard, they stated that they were and remain a stranger to whatever was said at that meeting as no recording of the same was retained. They submitted that the Complainant was dismissed following a fair and transparent process, free from any taint of discrimination. On a purely factual basis the Respondent pointed to the fact that the Complainant’s performance improvement plan, being the process that precipitated that probationary review meeting, commenced prior to the date of the alleged discrimination and as such it could have no bearing on the same. Once an allegation of discrimination was raised, a thorough investigation was undertaken, the outcome of which was communicated to the Complainant. Finally, they submitted that the Complainant failed to issue a complaint in the course of her employment in line with company procedures.

Section 6 of the Employment Equality Act prohibits discrimination any discriminatory ground.

Subsection (1)(a) of that Section provides that,

“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…which—

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned”

Subsection (2)(h) provides that race, colour, nationality or ethnic or national origins are included in the grounds on which discrimination is prohibited.

Regarding the burden of proof for such complaints, Section 85 allocates the probative burden between the parties. In particular, Section 85(A)(1) provides that,

“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.”

In the matter of Southern Health Board -v- Mitchell [2001] E.L.R. 201 the Court set out the now well-established test in determining whether the probative burden shifts by application of this subsection. In particular, the Court held that,

“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”.

In the matter of Galway Mayo Institute of Technology -v- Vlad Teleanca EDA 1835, the Court stated that this “Mitchell Test” was comprised of the following three steps :

1.       “It is for the Complainant to prove the primary facts upon which he or she relies in seeking to raise a presumption of discrimination. If the Complainant fails to do so he or she cannot succeed.

2.       If the primary facts relied upon are proved, it is for the Adjudication Officer/Court to evaluate those facts and consider if they are of sufficient significance to raise a presumption of discrimination.

3.       If the facts proven are considered of sufficient significance to raise a presumption of discrimination the onus of proving that there was no infringement of the principle of equal treatment passes to the Respondent”

In the matter of Cork City Council v McCarthy EDA 0821 the Labour Court held 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.”

In the matter of Melbury Developments Ltd v Valpeters EDA 09/17, the Labour Court commented that,

“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 present case, the Complainant has alleged that she was ultimately dismissed for voicing her views during a standard team meeting. It is her contention that this action constitutes discrimination within the meaning of the Acts as other persons of different racial backgrounds made similar comments but did not face the same or any sanction.

A number of issues arise in relation to this contention. Firstly, it was accepted by the Complainant that she was placed of a performance improvement plan prior to this meeting and during her probationary period. In such circumstances, it is clear that the issue of underperformance (which ultimately led to her dismissal) was contemplated and raised by the Respondent prior to the meeting in question and cannot have arisen as a consequence of the same.

In her evidence, the Complainant placed a significant emphasis on the apparent change in her line manager’s attitude towards her following this meeting. However, it is common case that the Complainant’s line manager was not a party to the meeting in question. No evidence has been presented to demonstrate that the Complainant’s line manager was made aware of the content of the meeting or that he formed an opinion in relation to the same at the relevant time. Indeed, the line manager’s own direct evidence was that such meetings are not recorded and that he was and remains a stranger to the particulars of the discussion. In circumstances whereby I accept that the Complainant’s line manager was not aware of the subject matter of the meeting of the 25th October, it follows that he cannot have subjected the Complainant to any form of discriminatory treatment on foot of the same.

In light of the foregoing points, I find that the Complainant has not established the primary facts from which I may infer a claim of discrimination. The allegation of discrimination is based upon the Complainant’s interpretation of events and assumptions regarding the motives of the Respondent rather than on established facts. Having regard to the wording of Section 85(A) of the Act, and the subsequent caselaw, I consequently find that the complaint is not well-founded and I do not find in favour of the Complainant.

I find that the complaint is not well founded and consequently find that the Complainant was not discriminated against.

Discriminatory Discrimination, Probation