Complainant

Respondent

Anonymised Parties

Technical Support Advisor

An International Computer Company 

Representatives

Roger Pope BL instructed by Caroline Beirne/ David Whelan @ Keating, Connolly and Sellers

David Pearson at  J.W. O'Donovan 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-00027106-001

15/03/2019

On 15 March 2019, the Complainant, while still an employee at the respondent company, lodged a complaint of racial discrimination, victimisation, harassment and discrimination in conditions of employment. She centred the most recent date of discrimination as 9 October 2018.

The Complainant resigned her position on 25 March 2019. The Respondent made an initial response to the claims dated 11 June 2019. The claims were denied.

Both parties made extensive written and oral submissions. The Complainant expressed some difficulty in obtaining documents from the respondent during case preparation, which she contended placed her at “an evidential deficit”. The case was not supported by an application for information in accordance with S. 76 of the Employment Equality Act, 1998.

The Complainants representatives submitted a very detailed file incorporating the Complainants Medical / Mental Health Pathway.

The Complainant was represented by Roger Pope BL and the Respondent by David Pearson, Solicitor.

  The hearing days hearing were concluded mostly in private and in person. During the recess from January 2020 to February 2021, the Complainants Solicitor informed the WRC that the Complainant had repatriated to live in France and would be subject to travel restrictions in the face of any planned resumption in the case.

 On 5 October ,2020, I wrote to the parties to convey my decision that I would conclude the case by remote, electronic means in accordance with the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and SI 359/2020, which designates the WRC as a body empowered to hold remote hearings. I am grateful to the WRC Team who persevered in securing a sustainable IT platform when the Respondent Team had a difficulty in connecting from a Home setting in February 2021.

The Complainant introduced one witness in the case. The Respondent introduced seven Witnesses.

I have exercised my discretion in the case and considering the clear sensitivities and in consideration of Counsels advocacy on the matter, I have decided to anonymise my decision, on this occasion.

I understand that the parties are engaged in parallel proceedings on Personal Injuries.  I had cause on several occasions in this case to address the parties on the parameters of the Employment Equality Act 1998. I informed the parties that this case should not be viewed as a “dress rehearsal “for any live, parallel personal injuries action. For me, the case stood on its own merits.

I made several requests for documents to assist in my investigation. I enquired whether either party were intent on relying on Medical Practitioner evidence in the case and was informed that they were not.

 The Complainant has been introduced to the case as a black female, who was adopted from biological parents of African origin at a young age by a white French family. She came to work with the respondent via a Social Media Page contact, on foot of a strong background in B. Sc International studies, an Internship at the United Nations and a 12-year business career in London. The Respondent operates a multinational computer company.

The Complainant commenced work with the respondent, with the support of a relocation package via Africa and Paris on 13 November 2017. She undertook the role of full time Technical Support Advisor, assigned to the new   French Team. Her salary was €27 ,000 per annum. She undertook a master’s Programme separately and concurrently during this employment.

Counsel submitted that while the complainant had carried out her work to the highest of standards, she was subjected to discrimination, harassment, adverse conditions of employment and victimisation on grounds of her race during her employment.

The Complainant reported these incidents, which resulted in a deterioration of her employment relationship. Counsel submitted that the Complainants probation was extended after she made complaints. She lost faith in the system as she believed that she had been “fobbed off “by the respondent.

Counsel submitted that the Complainant was also bullied and harassed by other employees, which was also disregarded by the respondent, which in normal gave the appearance of validating this unwelcome behaviour.

Counsel submitted that the Respondent had failed in their duty to the complainant by their omission to supervise, investigate or document the complainant’s numerous complaints. Furthermore, the alignment of the Complainant to Counselling fell below pro-active measures.

Counsel confirmed that the Complainant had not submitted an official grievance but had verbalised a series of complaints to her Managers which were “not acted upon “.

Counsel sought anonymity for the Complainant in the case decision.

The Complainants case was outlined as incorporative of 5 named incidents on the initial complaint form. I have included a short summary here and will return to more detail through the evidence adduced at hearing. It was denied that the claims were lodged in the face of refusal to grant Income continuance on foot of expiration of sick leave.

1.       23 December 2017, Incident in the Staff Canteen (Corrected at hearing to 21 December)

The complainant was subject to racial discrimination by three servers of a Christmas Buffet style lunch. The food was served to the complainant in a different manner to how all other employees were served.  All other employees received a well-presented Christmas meal, while the complainant received her food in a disgusting pile. She was served her food as if she was a dog ……

The Complainant was very upset and wanted to leave the employment. She saw the treatment as discriminatory. She went sent home after the incident but returned the next day. The Complainant had expected to receive an apology, but the matter concluded in the circulation of €5 vouchers to her and a colleague, present at the incident.

The Complainant contended that her concerns were trivialised, and she had not been heard on the level of her upset.

The Complainant eventually used the lunch vouchers on 12 June 2018 and submitted that the respondent had misinterpreted her politeness for satisfaction with the resolution of the matter.

2. Isolation by Colleagues

The Complainant was isolated by her colleagues on the French Team following this incident.  One white French colleague named A openly pronounced to another white French colleague named B that the respondent is into diversity and to look at the complainant as “an example of diversity “

This was reported, but no action taken.

3. Negative remarks by colleagues

A white French female colleague, named C together with two male colleagues openly racially mocked the complainant’s physical appearance, the colour of her skin, and her features. They criticised and said terrible things about the complainant’s appearance audibly, in her presence. They said she was ugly and made very derogatory racial comments about her.

The complainant was very upset and wanted to leave employment but was persuaded to stay. The Complainant addressed C, but got nowhere, was further isolated and C was promoted.

The Complainant raised her concerns with Ms S on several occasions. She also raised that colleagues chose not to sit beside her on the bus with Ms M. Nobody acted on her concerns.

4 Work Stations

A white French male colleague, D seemed to think it was amusing to bully, harass and taunt the complainant directly and overtly by calling her racist names, including “Snow White ““the Swedish girl ““fatu “(a poor, uneducated illiterate African girl from a poor area) and “Nafissatou Diallo “the name of a high-profile French maid, linked to prostitution.

The Complainant reported these incidents but was informed that D was a “joker “. This was not joking but discrimination. The Complainant confronted D and challenged the name calling. The Complainant accepts that D apologised post event.

The Complainant became further isolated. She experienced negative behaviour from another Colleague E, who was one of 4 male colleagues, who rented the house below her apartment. The Complainants witness, Mr A changed seats to sit beside the complainant, as nobody was prepared to sit beside her.

Counsel submitted that the complainant’s mental health suffered as a direct consequence of these behaviours. On September 22, 2018, she contacted the Human Resource Helpline anonymously because of not receiving support from the respondent on sick leave.

5. 18 September and 9 October 2018.

The Complainant sought out her managers on the incident with D the day before and on other days. She was seen by occupational health department, deemed medically unfit and sent home.

On 9 October 2018, the complainant attended the work premises and heard a colleague say that “he would spit on her grave “The Complainant sought out the area manager and requested to work from the safety of home. She was disregarded and informed that her allegations “were of racism “

The complainant submitted that the respondent had failed her as an employee.

She recorded that “she has suffered profound psychological and psychiatric injuries as a result of racial discrimination bullying, harassment, isolation and segregation suffered at the hands of her work colleagues ………”

The Complainant form reflected that the complainant had experienced a follow-on mental health deterioration which prompted suicidal attempts and an involuntary detention in Hospital under the Mental Health Acts. Her prognosis was recorded as guarded, and the complainant feared her future employability as a result. She was hospitalised for a prolonged period.

Counsel submitted that the Complainant had been left frustrated by the respondent’s lack of direct engagement with her. She was disappointed in the Multi National Corporation.

Time Limits

Counsel submitted that the incidents complained of in the case comprised a continuum in accordance with Section 77 (5) of the Act. Dept of Foreign Affairs v Cullen, EDA 116 County Cork VEC V Hurley EDA 1124.

In relying on Dept of Health and Children v Gillen [2005] ELR 141, Waldron v North Western Health Board DEC -E 2003-021, Louth VEC [2009] IEHC 370, Counsel argued that distinct incidents and acts were accepted for adjudication, provide the acts were related and arose on the same protected ground.

In the instant case, in relying on the parameters of section 77(5) of the Acts, he argued that 1-4 incidents formed a continuum and the fifth incident of the corridor incident in October 2018 fell within the relevant period.

Counsel went on to submit the application of Section 77(6) (A) in the case, where a single act extending over a period and so treated as done at the end of that period, if an employer maintains and keeps in place a discriminatory regime, rule, practice, or principle which had a clear and adverse effect on the complainant. Cooke V UCD DEC-E2010-044

Victimisation:

Counsel submitted that the complainant had been subjected to Victimisation due to the adverse treatment following raising complaints with the respondent. Namely:

1 unwarranted extension of her probation period

2 two separate warnings “occurrences”-time keeping

3 Isolation by colleagues

Following the lodging of the complaints with the WRC dated 15 March 2019, the Respondent emailed the complainant seeking her engagement in a grievance procedure, this was a marked contrast to how the respondent had engaged with the complainant while she was on certified sick leave.

Counsel also submitted that the complainant’s solicitor was by passed in favour of the respondent making direct contact with the complainant on her data access request.

Relying on Mc Camley v Dublin Bus EDA 164[2016]27 ELR, Counsel advanced the viewpoint that comments made at work by colleagues of the complainantarose as a direct consequence of her being at work. The Respondent could not distance from this certainty.

Counsel submitted that the complainant had satisfied the burden of proof necessary in the case to shift that burden to the Respondent. Ntoko v Citibank [2004] 15 ELR 116 reflects the difficulties faced by a complainant in pursuance of claims for discrimination and the adaptation of normal rules of evidence.

Counsel submitted that in addition, the complainant had been subjected to victimisation due to adverse treatment following raising her complaints of discrimination. This was delineated by the probation extension, two occurrences and ongoing isolation by her work colleagues.

The Complainant stressed the inconsistency in the respondents queries regarding activation of the company grievance procedure vis a vis the company inertia during the complainant’s sick leave.

Evidence of the Complainant

The complainant confirmed her starting and training details. She acknowledged that she had been told to work harder at her 6-month probation meeting.

Incident 1

The Complainant attended the Canteen for Christmas Buffet lunch in the company of a colleague from the French Team on 21 December 2017. She elected for a take away lunch and observed that her takeaway lunch box was subjected to a violent gesture of shaking by one of the servers. She had not received potatoes and vegetables. The service was horrendous and potatoes, veg and meat were thrown into the box. She asked the server to be more sensitive.

The Manager proposed a refund   and apologised “for the look of it “The Complainant did not touch the box, showed it to her colleagues and unplugged her PC as did not want to continue working at the plant. She discussed the incident with her line Manager.

She submitted that she feared dismissal if she raised an issue and had no desire to come to the attention of the Area Manager. She took a break and decided to report the incident as being racially motivated. The Complainant asked that CC TV footage be examined. She was informed that her leaving the site would attract” an occurrence” on her file., she was determined to go home. She secured a company taxi and went home.

 The Complainant said that she had received feedback from the Catering Manager in February 2018. CC TV had not been sourced and she felt the matter had been belittled and trivialised by the Canteen director. She submitted that she was “too polite “to challenge the limited lunch vouchers offered in resolution. She told the hearing that “I was polite about the outcome and said thank you”

Incident 2, Mid-January 2018, onwards 

The Complainant contended that she had been singled out in her team, who were unkind. She named 3 French team members, Ms X, Ms Z and Mr S and one Spanish member, Ms Y, who sat close to each other. She said she was ignored at work and brought this to Ms F attention. Ms X, Ms Z and Ms Z were all physically repulsed by her and she signalled this as occurring in 2018. She attributed this as her being black.

The complainant had not filed an incident report to mark these incidents.

Incident 3 post July 2018

The Complainant submitted that she was requested to move her seating by her Manager. She believed that she was actively disliked by her colleagues, who had not invited her to parties. A named colleague used to joke with her a lot. He then became offensive towards her and she asked him to stop

 After a couple of months, she stopped talking to him. He addressed her as “Fatu “a racial slur.

Other colleagues pulled their chairs away from her. It was not a nice working environment.

In referring to Winter, 2018, the Complainant recalled that colleagues had pointed at her and were dismissive of her.

The Complainant went on to confirm that she had discussed her concerns with Ms M in Winter 2018 and was asked to get her colleagues to refrain from this behaviour. She confirmed that she felt unable to do this as it was embarrassing being insulted and called ugly.

She was very upset to be openly laughed at by colleagues in her workplace. She endeavoured to stop D in his insults of her by saying “You shouldn’t do that if you want to become a Manager “

She did not feel empowered to cease the actions of her colleagues’ insults. she was embarrassed by hearing herself being referred to as “ugly “without reprimand by anyone.

She sought to go home, but was prevented by Ms S, fearing application of “occurrences”, which she viewed as a punitive measure, which would ultimately impact on her tenure.

The Complainant submitted that she really didn’t remember much after that work day, where she had been insulted. She confirmed that she had not made a formal complaint but was tired of raising her concerns. She had not returned to work after September 18, 2018 and had resigned in March 2019.

The Complainant confirmed that she had agreed to the probation extension of May 2018 but contended that she had no choice.

Cross examination:

The Complainant responded to the Respondent Solicitors questions on the canteen issue. The Complainant confirmed that she recalled being in the meeting room where there was pen, paper and lap top and she was asked to describe the event. She had asked to go home.

She recalled Ms M telling her that it was better that she stays at work and undertake e-learning as absence would attract “an occurrence”. She denied that Ms M offered to investigate the event. She said that she did not hear her say that the matter would be investigated. The complainant was horrified and felt pressurised. She waited 20 to 30 minutes for the taxi and had no recollection of being offered the support presence of a colleague who lived in the same building. She replied “I wanted to be by myself “

The Complainant rejected the Solicitors questions on support shown to her post event but acknowledged that Ms M had listened but felt that her concerns of racism were totally trivialised. The Complainant was unclear as whether she, herself had requested an investigation on the canteen issue, but recalled that she had not received a copy of the outcome report. She had not been asked for direct input into Mr Cs investigation.

The Complainant conceded that she was very emotional in the direct aftermath of this event and felt that she could not answer appropriately due to her emotions. She told the hearing that she naturally equated presence in a Meeting Room with exposure to Disciplinary scenarios.

She confirmed that she had maintained email and personal contact with Ms M, but no notes were retained following these meetings.

The Complainant confirmed that Ms C had apologised for her experience in the canteen, which she herself had believed was racially motivated. However, Ms M and Ms C minimised the event.

The Complainant felt overwhelmed by the corporate culture and her view that her probation was live, and she did not wish to jeopardise this.

She had secured occurrences which she saw as a punishment and a risk to her continuum of employment. Coupled with this, she had felt actively isolated by named colleagues and lost faith when she was placed back into the Meeting Room for the third time. This followed her feelings of isolation by named colleagues. She sought to address these issues but was brushed off, by being informed the staff were young.

She decided to adopt a position of polite acceptance of the corporate gesture of lunch vouchers. She felt diminished when they stressed that the company did not usually offer lunch vouchers in resolution of issues.

The Complainant contended that she wasn’t being listened to in the sense that a white person would be but decided to let it go as she was trying to be polite. The Complainant distanced herself from the note where she had indicated that she had appreciated the offer and resolution, by saying, “I didn’t mean it “The communique amounted to “the corporate way of addressing superiors “

She stated that her priority was to “conclude her probation and keep her head down “She agreed that she had not spoken about the incident after this.

The Complainant confirmed that she did not have an issue with her extended probation and she was happy to sign for the extension. she knew she had a lot to learn at the company. She was dissatisfied with her work experiences, which caused her stress and a sense of exclusion. She subsequently made application to work from home in March 2018 and was awaiting a vacancy.

Solicitor for the Respondent questioned the complainant on her Medical condition from September 2018 onwards. The Complainant said she was very scared during this time. She contended that her isolation by staff caused her to have “major massive breakdown”.

She identified being sent home by Occupational Health as the trigger for this on 18 September 2018.  The Complainant recalled that she was placed in the presence of Security on that occasion, prior to seeing the Dr and felt wronged by that action.

She recalled contacting a named Manager and telling her that D had “done it again yesterday “

In referencing her anonymous email of September 22, 2018, the complainant said that she was “being polite “but really, she was living with racism and wanted the company to know “what was done to me by the team “.

She acknowledged that she carried some anger against Ms B as she did not take appropriate action. She argued that Human Resources should have had all the reports. These oral complaints should have triggered a formal investigation. The Complainant said she was nervous as being seen walking on the aisle with a manager as to her, this signified “trouble”

The matter should have been investigated before Occupational Health involvement as the complainant said she felt like “the perpetrator. She told the Doctor about the level of isolation she had experienced at work. She was sent home. The Complainant clarified that she had discussed her situation with a Manager not present at hearing.

 She felt distressed as no body followed her up from work and she went from there to Compulsory Hospital Admission in December 2018.

She was not invited to raise a grievance and had no recall of being offered a joint meeting following Mr S intervention. She contended that she “voiced the evidence daily “and it fell to Managers to manage company procedures. She was alone in the country and undertaking formal education in the master’s Programme. She was aware of the employee booklet, had training in this, but did not consult it. The Complainant said she was scared.

She acknowledged that the Managers had voiced options to her, but she was the victim.

The Complainant had no recall of whether she had accepted D’s apology.

The Complainant confirmed that while she was attending” Wellness” on 9 October 2018, she heard a colleague say in passing on the corridor that “he would spit on her grave “.

The Complainant submitted that by November 6, 2018, she wasn’t willing to “talk anymore “as she had told four different managers of her experiences at work.” They had turned their backs from the beginning”.

The Complainant outlined that her neighbours were also employees of the respondent, who were engaged in alcohol and drugs at large parties from which she was excluded. She could not sleep because of the ongoing disturbance.

She made complaints about her housemates to Managers at United Nations and in United Kingdom but did not alert the Irish Gardai. She said a colleague had apologised by email but did not furnish that email in evidence.

The Complainant gave evidence on her Mental Health condition in December 2018. She denied that she had made a complaint of racial discrimination while an inpatient in hospital. She said she was sick there and not “in the right frame “.

 She denied that she had diagnosis put to her by the Solicitor. She did not accept the diagnosis of Bi Polar disorder attributed to her on discharge.

She denied any previous mental health difficulties and confirmed that she had not attended a scheduled job interview on 29 December 2018, due to illness. The complainant clarified that she did not need medication and it had been reduced to ¼ the amount of December 2018.

In response to the respondent solicitor, the complainant detailed that she had continued to attend the company doctor and did not transfer her care to Limerick when she relocated there in March 2019.

The Complainant confirmed that she had attained her master’s Programme with a mention in September 2019. When asked why she had requested the respondent to wait until May 10, 2019 to follow up with her? she explained that she was sitting exams.

The Complainant confirmed that she had received income protection for 2- 3 months post expiration of paid sick leave.

The Complainant confirmed that she had been treated less favourably because of her race.

Evidence of Mr A, Work Colleague and ex-employee

Mr A joined the French Team on 13 November 2017 and he took lunch with the complainant on 21 December 2017. He had a Chinese Meal, finished before the Complainant and waited for her.

He saw the Waiter throw potatoes onto her plate in a different and disrespectful manner. He had asked for options, but the complainant had not been provided with options. Her plate was taken, and she was given a “take away box “others got nicely presented food.

He was approached by Manager A about incident one. He told her that the complainant had experienced a racial incident, but no notes were taken.

He sat next to the complainant from March 2018 until his date of departure in July 2018. He stated that he saw the complainant was not liked and was rejected by others. He named one member of staff Ms X, who did not answer when she spoke.

He submitted that he had not been present when screens were changed. He told the hearing that the complainant had told him that she had been called racial names. He encouraged her to come and join him in Limerick and to report the incident of racial insults.

He recalled December 2018, he was in Copenhagen when the complainant phoned him, she was very sick and had stated mental health difficulties. The Complainant told him that she had received a message from Ms S asking “how she felt? “

In cross examination, Mr A clarified that he had taken lunch at the work bar. He was positioned in the queue behind the complainant during incident no 1. He could not recall what was on her plate. He said that the complainant had asked for meat and potatoes. These were smashed into a box and handed to her. He did not hear the exchange immediately after this but understood that complainant was offered to waiver payment. She did not want to eat her meal as she was upset.

Mr A explained that there were no team meetings. He confirmed that it was normal practice to move people’s desks at work, others were also moved.

In Conclusion, counsel for the Complainant concluded that the complainant had remained unsupported during her employment. He asked that her evidence and that of her witness be considered in full.

The Complainant was discriminated during her work, was isolated and devalued. She suffered Victimisation, in the aftermath of raising of her concerns that her race was at the centre of the treatment she received, and she was treated less favourably.

The Complainant was discriminated against in accordance with section 6(2)(h) and Section 74(2) of the Employment Equality Acts 1998-2008. Her complaints followed a continuum under the section 77(5) of the Act

The Complainants representatives clarified details requested from the Medical Booklet and reaffirmed that they were not calling Medical evidence in the case.

The Complainant found new work in France in December 2019.

The Respondent operates an International Computer Business and has 4,300 employees on the site, where the complainant joined on 13 November 2017.

The Respondent filed a response to the claims dated 11 June 2019, which I will summarise here and return to witness evidence later in the document.

The Respondent has refuted all claims. The Respondent confirmed that the complainant’s probation was extended on objective grounds and was not discriminatory.

The Respondent Solicitor submitted that the Company is an employer that recognises that each employee contributes a wealth of perspectives to its culture. The company in Ireland currently employs people from 83 different nationalities and is committed to providing a workplace free of discrimination and has a range of on-line policies relevant to the instant complaint, such as the exhibited:

1. Business Conduct Policy

2 Diversity and Equal Opportunity and Accommodation

3 Harassment and Bullying Policy

4 Grievance Policy

He submitted that the respondent prioritises Diversity and culture awareness.

 Manager Training records were submitted at the Adjudicators request. The Respondent also responded to the adjudicators request for specified documents to assist in the investigation.

The Company solicitor outlined that the Complainant had received full induction training. The Respondent submitted that the complainant had responded positively to the “various interventions of the respondent into the concerns raised by her” and had expressed satisfaction.

The Respondent argued that the complainant has not established enough proof of discrimination /victimisation as required by the Employment Equality Act, 1998. The Complainant has not produced any evidence or submissions on victimisation.

The Respondent Solicitor went on to emphasise that the complainant had not activated any of the company policies and resigned her position in the aftermath of submitting her complaints to WRC, without activation of the grievance procedure.

During her employment, the complainant had the full support of the company occupational health dept, help line and received income continuance paid at 75% of salary.

It was the respondent case that all matters raised by the complainant were fully addressed during her employment.

Preliminary Point: Incident 1.

The Respondent submitted that this complaint was out of time and the WRC had no jurisdiction on the matter as the complaint was submitted after the end of the period of 6 months from the date of the occurrence.

The Respondent also argued lack of locus standi on behalf of the complainant as the canteen facilities are provided by a third party.

The third party had investigated the incident at behest of the respondent. The complainant availed of lunch vouchers and confirmed that this had been a successful resolution of a customer service issue.

Incident 2:

The Respondent submitted that this complaint, undated was out of time and the WRC had no jurisdiction on the matter as the complaint was submitted after the end of the period of 6 months from the date of the occurrence.

The Complainant had not formalised a specific complaint of isolation or segregation.

Incident 3

The Respondent submitted that these complaints were not dated and thus out of time. The Complainant had not formalised a specific complaint on diversity.

Incident 4

The Respondent submitted that this complaint undated was out of time and the WRC had no jurisdiction on the matter as the complaint was submitted after the end of the period of 6 months from the date of the occurrence.

The Complainant had reported being called “ugly “but refrained from lodging a complaint, when invited.

The Respondent denied that the complainant reported being “openly racially mocked “

Incident 5

The Respondent Solicitor detailed that a Manager had observed “an animated conversation between the complainant and D “on 18 September 2018. The Complainant advised that she had not appreciated a recent joke made by D, but she did not require further action from the respondent. D also raised his dissatisfaction at being referred to by the complainant as a racist but did not action a complaint. The parties acknowledged that two employees of identical names were referenced in this incident, but only D was directly involved.

The Respondent Human Resource Dept followed up the complainants call to the company help line, but the complainant distanced herself from formalisation of any grievance.

The Respondent attributed the complainant’s complaint of March 2019 to the WRC as a responsive action postdating expiration of sick pay. The complainant had not engaged when the respondent reached out to her via the framework of the company grievance procedure and income protection.

She resigned without returning to work and only after raising her complaints with the WRC. The Respondent submitted that they had been denied an opportunity to engage with the complainant against the back drop of company procedures constructed for this purpose.

Evidence of Ms C, Manager of External Canteen service

Ms C is a Manager for the Externally provided canteen service. She introduced the hearing to the Physical Layout and Menus for the canteen area by way of coloured maps. She also exhibited a replica of a plate and a take away box used at service.

She recalled meeting Ms M, the complainant’s manager on 9 January 2018. She heard that the servers had been rude to the complainant during service, which she had attributed to her race. Ms C was horrified and asked her colleague, Mr C to investigate.

She met with Ms M regarding the outcome, which was poor customer service. Both she and Ms M met with the complainant on 14 February 2018, where she made a discrete offering of lunch plus a drink for two to the complainant. She understood this offer was availed of by the complainant and a colleague in June 2018 and she considered the matter closed.

During cross examination, Ms C confirmed that CC TV footage was not relied on. She had delegated the investigation to Mr C as a matter of urgency. He contacted the complainant and witnesses. The Investigation was undertaken through the external providers process.

Vouchers were not used as a rule, but Ms C wanted the complainant to know that she was welcome at the canteen.

The Complainant had not mentioned that she was ill.

Evidence of Mr C, Catering General Manager

Mr C is Manager to 155 employees and has 3 years’ experience in the role. He had undertaken Equality training in College.

There were 35 nationalities present in the canteen workforce and 60 chefs.

He undertook an investigation from a verbal exchange with Ms C. He understood this was a customer service issue and not one of discrimination and ethnicity. He checked with the Floor Manager and she had not heard of a complaint regarding the complainant’s race.

 He checked with the head chef, but no complaint had been made on the day of incident 1.

He submitted that it was a busy day in the restaurant and he concluded that customer service had been rude. The follow up action plan for Chefs and Servers was to “slow down and pay attention “

He submitted his report to Ms C.

During cross examination, he confirmed that he had relied on his notes and not CC tv footage. He interviewed 5 people. He had offered to meet with the complainant as part of the outcome to apologise. He accepted that chefs were too focussed on speed on that day.

He was unaware that Mr A was not interviewed.

Evidence of Mr S, Team Manager

Mr Shad worked at the Company for 6 years. He had a recollection of Incident No 5, in September 2018, where the complainant, referring to an incident of where she had been referred to in a very negative and derogatory manner by D.

He asked the Complainant to join him for a quick chat in the Meeting Room. The Complainant explained that she was just back from sick leave and the comment, which referred to her in such a derogatory manner had “tipped her over the edge”.

Mr S was shocked as he had found D to be one of the nicest team members. He sought to direct the situation towards resolution and informed the complainant that the matter could be addressed together or separately or if she wished to make a formal complaint?  The Complainant desisted by stating that D “…. did not mean to harm her “. He understood the engagement was 1-2 minutes duration.

Mr S confirmed that he would be raising the matter with Ms M and Human Resources. The Complainant smiled and accepted this suggested approach and said that she would discuss the matter with her Manager.

Mr S went on to meet with D who had a similar story to that of the complainant but was not malicious. Mr E passed the matter on to Ms M and understood that the Disciplinary procedure was to be activated, but later learned that the complainant was telling people, independently, that D Was a Racist. D expressed his upset and before Mr S could advance matters further, the complainant had left the building and commenced sick leave.

Mr S was perturbed as the complainant had maintained a convivial disposition at work, whilst struggling with the job itself. She had not raised any issues of mistreatment.

During cross examination, Mr S denied that he had marched the complainant to the meeting room. He asked her if she was ok? And if she wished to chat?

He confirmed that he was alone in this 1:1 engagement and did not rely on a notepad or a computer.

Mr S confirmed that he had not heard the comments attributed by the complainant to D, but he confirmed the presence of company procedures to address such comments. He said he walked into his Managers office to report the complainant’s conversation on that day. He anticipated an external investigation but confirmed that an investigation had not occurred as the complainant was not in the workplace.

Counsel impressed on Mr S that “something had happened between the complainant and D “He put it to Mr S that this was more than a “joke gone badly “

Mr S reaffirmed that he had passed the matter up his chain of command and stood over his actions on what he considered was a single episode incident.

 He centred the date of occurrence as September 18, 2018. The Complainant had described it as a single episode incident and not “repeated “He did not have an answer as to why D had not received an occurrence in respect of this exchange of derogatory comments.

He confirmed that an investigation, dependent on severity may have followed, if both parties were attendant at work. He denied that lack of intervention promoted discrimination in the workplace.

The Company Solicitor redirected the witness, who confirmed that he fully understood the nuances of the reported conversation. He confirmed that he understood the encounter was based on a

 “friendly/joking approach”.

Evidence of Ms S, Technical Support Advisor

 Ms S set the scene of the evolution of the Induction for 16 new employees, who joined the new team. She had not been directly involved in hiring the complainant.

She explained the contextual background to application and vulnerabilities of “occurrences”, while qualifying that every case is different.

Coaching, Training and Support were offered to the team. The Seating Plan was based on strengths and challenges. Everyone was familiar with the ergonomics of seating.

The Company operated a 1;1 monthly meeting with new recruits, followed by checking and extra coaching, if necessary.

She recalled the complainant being very self-aware of her lack of technical skills. She recalled that training and extra coaching was provided in her case at an early stage as Ms S herself had experience in that field. This brought her in more frequent contact with the complainant. The complainant was located adjacent to Ms S in the seating plan and was aware that she could “reach out to her “

The Complainant acknowledged that she had “more work to be done “during her 3-month probation review. She was receptive to coaching. An Action plan was formulated before her midway probation with her agreement.

Ms S submitted that the Complainant had first raised issues of concern around end of March 2018. She said she had gone to a Bar with new colleagues and had been refused entry by them to the Rest Rooms. She was aware of the incident in the canteen at Christmas and knew that Ms M handled this.

The Complainant also said that she had been called “ugly “by a colleague, with whom she had previously collaborated. Ms M offered to arrange for a formal investigation, but the complainant asked that she not be involved.

Ms S had no recollection of telling the complainant that her colleagues were “young” She denied that the complainant had raised issues of racial discrimination by colleagues.

Ms S confirmed that the complainant had occurrences recorded on her file. There was a problem with her attendance. She recalled asking the complainant if she needed more support? The Complainant understood the two occurrences were not her fault.

The Complainant had not raised a complaint of race by the time of January 28, 2018 meeting. Their conversation was based strictly on the performance review

During cross examination, Ms S confirmed that Team Meetings occurred weekly in the Meeting Room. The meetings were attended by the entire team.

Ms S helped the complainant every working day. Ms M was a focal contact.

Ms S was not involved in the canteen incident outside of arranging the schedule to release the complainant to go home. She addressed Ms M on this.

Ms S was aware that Ms M addressed concerns of race but was not involved in the report or discussions on the report. she knew that Ms M had offered a voucher to the complainant.

There were issues with the complainant’s performance which were addressed via a standard coaching and development action plan.

Evidence of Ms M, Area Manager

Ms M manages over 100 Advisors. Ms S reported to her. She first met the complainant on 23 (corrected to 21) December 2017, following the canteen incident. She wanted to make sure she was ok.

The complainant was animated and repetitive in conversation and she told Ms M not to do anything, but her message was that she did not want to go to the canteen.

Ms M concluded that the complainant was not fit to work, and she sent her home, offering her the added presence of a work colleague for support. however, she went home alone in the taxi.

Ms M followed up the incident directly with Ms C the Catering Manager, who was surprised. On Investigation the Canteen was found to be operating on less than full staffing. Ms C offered to meet with the complainant and Ms M to seek to repair the customer relationship.

The parties met for a 30-minute meeting on February 14, 2018. Ms C apologised to the complainant, who remained very upset. The complainant was offered an unspecified amount lunch voucher for two. She was afforded time to consider this offer and she accepted the lunch voucher on 14 March. Ms M followed up the matter with the complainant and deemed it resolved. It was not discussed again in the intervening period.

Ms M submitted that she had offered Mr S guidance on how to manage the incident referred to in his evidence. She suggested that all three could “get together “to address the issue. Ms M had not witnessed the complainant’s behaviour, reported as “erratic and shouting “

Out of concern, she secured an urgent appointment at Occupational Health and the Complainant was seen on the same day.

Much later, in early to mid-December 2018, while on sick leave, Ms M submitted that she had met the complainant roaming around the corridor in the workplace. She said that she seemed disorientated and upset. she spoke freely on being subjected to racial discrimination in Ireland, not necessarily in her employment. She said that she was a victim of discrimination when people did not sit next to her on the Bus.

Ms M recalled that the complainant wished to engage with her and indicated that the primary concern was for the complainant to “get better “. after which, she would set up a meeting to “address the concerns she had “. Occupational Health had not deemed the complainant fit to engage in workplace issues.

Ms M sought to contact her on 22 January 2018, but her phone number was not connecting. A new Team Manager was subsequently appointed. The complainant continued to be involved in occupational health and to receive income continuance payments.

Ms M confirmed that she had a positive working relationship with the complainant, who used to wish her a “lovely day “

Ms M explained the operation of probation at the company. She confirmed that the complainant’s probation had been extended due to performance issues and an improvement was noted post mid review.

During cross examination

Ms M rejected Counsel for the Complainants view that a significant and fundamental failure had followed her experiences at the respondent business. Ms M reaffirmed that the complainant had not made a formal complaint and she had trusted Ms C’s Investigative process following the canteen incident in December 2017.

 She conceded that in hindsight, the complainant should have been interviewed. Ms M recalled taking some notes around this time. She disputed that the complainant had made an official complaint and the emphasis was on a customer relations issue at the canteen. She stood over the eventual report. She did not see a reference to race in the report.

She contended that she couldn’t force a party to activate a grievance. The complainant had not activated a grievance or any other complaint.

Ms M confirmed that the incident involving D was not investigated.

Ms M submitted that she had been pro active in her management of the complainant. She was aware that the complainant often spoke about her race, but the respondent main concern centred on her health and the need for Occupational Health input. She fully intended on picking up any remaining issues on the complainants return to work. Ms M did what she could to help. She   denied directing the complainant to address the staff members personally with her issues.

Evidence of Mr F, Human Resource Dept

Mr F had a limited involvement with the Complainant from late March 2019 as he worked in a different side of the Business to Ms D, who was on annual leave at that time.

On 25 April ,2019, he received an email from the Complainant signalling her intention to resign. He prevailed on her to reconsider and utilise the company grievance procedure. He also advised that she follow through on her application for income continuance, which she did not. He offered her a defined time to revert and attached the grievance procedure.

On May 3, 2019, the Complainant sent an email which said that she was out of the country and would revert. He was asked to wait until May 10 to follow up.

 She resigned her employment, saying she had no option in that regard on 23 May 2019.

During cross examination, Mr F confirmed that he had not been privy to the earlier incidents.

He confirmed that he had invited the complainant to reconsider her resignation by an identified deadline. He was unaware that she was medically unfit.

Evidence of Ms B. Human Resource Manager

Ms B is in post from January 2018 as Employee Relations Business Partner over 4 Teams. She was joined by Mr F in March 2018.

She outlined the broad range of her duties and responsibilities, from the ceremonies on joining the business to leaving the business.

She returned to the office during the first week of November 2018. She had taken account of the reports of the September incident involving the complainant and a colleague. Ms M had recounted the details, and the eventual referral of the complainant to Occupational Health. She was aware that the complainant had remained absent from work from that point and had been deemed unfit to engage.

Ms B had intended to address the complainant on her return, in the meantime, Ms M took charge and liaised with Occupational Health. The complainant continued to be unfit to work.

During cross examination, Ms B expanded on her role and clarified her positioning as a contact person in Disciplinary matters. She replied that she had not been party to the earlier incidents as the canteen issue was managed by a third party and Ms M.

Ms B disagreed with Counsel that the company procedures were flawed and affirmed that the complainant had a defined opportunity to raise a complaint in accordance with the respondent procedures.

Ms B confirmed that there were occasions where issues concerning dissatisfaction with a Manager may find their way to her via Occupational Health, but in this case, this did not occur.

Ms B submitted that her awareness of issues surrounding the complainant rested on the canteen incident and that of the “D” exchange. She was satisfied that both issues had been fairly addressed and managed through investigation and informal process.

The Complainant had not been deemed fit to engage by Occupational Health and Ms B denied that there had been a “contagion “element to the process.

Ms B acknowledged that the complainant’s reliance on the help line could be viewed as a “cry for help “

Ms B explained the procedures and policy available to address Bullying and Harassment and Cultural awareness training and confirmed that Managers had received training in that area.

The Respondent concluded in a re-affirmation that the complainant had not satisfied the burden of proof in the case and she had neither been discriminated, harassed or victimised during her employment. The respondent had supported her in every way possible.

I have been requested to decide on whether the Respondent discriminated against the Complainant on race grounds in relation to conditions of employment, harassment and whether the complainant was victimised contrary to the provisions of the Employment Equality Act, 1998, as amended?

In arriving at my decision in this case, I have engaged in a very extensive investigation of the facts as presented. I have also taken into consideration the oral evidence adduced, the lengthy written submissions and subsequent legal submissions.

I have also read the entire Medical file presented by the Complainant. I established that neither party chose to introduce Medical evidence by any of the treating and consulting Doctors/Nurses/ Counsellors mentioned in this file.

The case came to me following several postponements and having heard outline submissions from the parties and mindful of the standard burden of proof contained in Section 85A of the Act, I requested many documents to assist in my Investigation. I received a positive response on most of these documents. All documents were shared with the parties and accompanied by responding submissions.

The Law in this case.

Discrimination for the purposes of this Act.

6

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’) which —

(i)      Exists,

(2) as between any 2 persons, the discriminatory ground is Race

h) that they are of different race, colour, nationality or ethnic or national origins (in this Act referred to as “the ground of race”),

Section 8 of the Act prohibits discrimination in an employment setting.

Section 14 A (1) outlines the law on Harassment

Section 14(7)(a) defines harassment as

(i)      References to harassment are to any forms of unwanted conduct related to any of the discriminatory grounds

Being conduct which in either case has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person

Section 15(1) covers the Law on vicarious liability

Liability of employers and principals.

15

15.— (1) Anything done by a person during 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.

(2) Anything done by a person as agent for another person, with the authority (whether express or implied and whether precedent or subsequent) of that other person shall, in any proceedings brought under this Act, be treated for the purposes of this Act as done also by that other person.

(3) 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.

Section 74 (2) outlines the law on victimisation

(2) For the purposes of this Part victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to —

( a ) a complaint of discrimination made by the employee to the employer,

( b ) any proceedings by a complainant,

( c ) an employee having represented or otherwise supported a complainant,

( d ) the work of an employee having been compared with that of another employee for any of the purposes of this Act or any enactment repealed by this Act,

( e ) an employee having been a witness in any proceedings under this Act or the Equal Status Act 2000 or any such repealed enactment,

( f ) an employee having opposed by lawful means an act which is unlawful under this Act or the said Act of 2000 or which was unlawful under any such repealed enactment,

Section 76, Right to Information

This provision of the Employment Equality Act, 1998 is supported by Employment Equality Act (Section 76, Right to Information) Regulations 1999, S.I 132/1999, which came into operation on 18 October of that year. This allows a person seeking redress for discrimination, as a first step to obtain information from a potential respondent in a claim. Section 81 outlines consequences for failure to provide that inference, in that an Adjudicator may draw inferences from this.

There several “safety clauses” relating to “confidential information “in S. 76.

A helpful template of questionnaires designed for parties are also attached to the SI.

The Labour Court, in a claim for equal pay, made some insightful comments to the real time importance of S76 vis a vis the burden of proof in the case of Irish Ale Breweries ltd T/A Diageo and Noelene O Sullivan [2007]18 ELR150

The claimant had sought information concerning the duties and remuneration of a yardman employed by the respondent in Waterford pursuant to s.76 of the Employment Equality Act 1998. Despite several reminders the respondent failed or refused to provide that information. No explanation or lawful excuse for this failure was provided. Section 81 of the 1998 Act provides that in these circumstances the court may draw such inferences as seem appropriate.

I make this reference to this section of the Act in this case, as I found that the Complainant approached the case with very defined sense of having experienced discrimination, yet with little detail pertaining to the circumstances of her claim for discrimination /victimisation. I appreciate that the parties have also been engaged in parallel proceedings for personal injuries and a pathway for information was certainly active on that count.

However, the instant claims before me came first in time in March 2019 and while the complainant was still employed. I believe it would have benefitted both parties if they had considered an earlier engagement in this matter and the provisions of section 76 may have been helpful.

Arising from the absence of activation of S76, and in respect for the burden of proof resting on the complainant, I requested many key documents to assist me in my investigation. This caused a delay in progressing the case to finality as parties had to engage and respond to these documents.

I am grateful to the parties for this engagement.

Medical Evidence:

The Complainant representatives made an early request for a Medical Report by a named Occupational Health Doctor that was not forthcoming. The Complainants medical records as held by the respondent were submitted on a confidential basis.

 This followed several applications to the Data Protection Commissioner in pursuance of data for the complainant’s case. As stated earlier, I re-affirmed my role as an Adjudicator whose sole jurisdiction came under the Employment Equality legislation in the case. I urged the parties to navigate through the facts of the case in respect of this Legislation and to navigate their Personal Injuries case on another day.

Neither party chose to rely on direct medical practitioner evidence in the case. I established that the respondent had not actioned a pre-employment medical clearance on the complainant’s initial recruitment in 2017.

 This is a particularly sensitive area of employment law, where a prospective and active employee have a right to privacy and non-discrimination and information is regulated by means of protection of privacy in accordance with Part 4 of the Disability Act, 2005.

However, the background to this case was populated with periods of physical and profound mental illness and I would have liked to have seen a pre-employment screening completed to assist me in my consideration of the facts of the case. I accept that the severity of the mental illness was disputed by the complainant herself .

I did, however, read and consider the entire medical report tendered at hearing, complete with a translated letter from the complainant’s own doctor in France. I also managed to seek and secure clarifications from the parties on this  extensive medical/mental health  chronology.

However, I was unable to probe this report in evidence. I could merely draw a sequential pathway of illness recorded by both the complainants own medical officers, the respondent’s wellness centre and the Mental Health Centres attended by the Complainant during the lifetime of her employment.

I have also drawn from the complainant’s own evidence and cross examination by Mr Pearson.

Preliminary Issue: Time Limits:

The Complainant has requested that the events complained of which span a considerable period from December 21, 2017 - October 9, 2018 and beyond together constitute a continuum in accordance with Section 77( 5) of the Act . This is strenuously contested by the respondent , who has argued that the complaints in their entirety are statute barred . They contend that no events occurred in the period of 6 months prior to the claims being made. That is 16 September 2018-15 March 2018 and that the complainant has not made out a separate case of victimisation.

I have considered both positions on time limits as stated.

Section 77(5)(a) of the Acts provides:

(5) (a) Subject to paragraph (b), a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of occurrence of the discrimination or victimisation to which the case relates or the date of its most recent occurrence.

( b ) On application by a complainant the  Director General of the Workplace Relations Commission  or Circuit Court, as the case may be, may, for reasonable cause, direct that in relation to the complainant paragraph (a) shall have effect as if for the reference to a period of 6 months there were substituted a reference to such period not exceeding 12 months as is specified in the direction; and, where such a direction is given, this Part shall have effect accordingly.

Section 77 (6) (a) provides that:

(a)    Discrimination of victimisation occurs –

(i)      If the act constituting it extends over a period, at the end of that period

In 2011, the Labour Court considered these provisions in Hurley v County Cork VEC, EDA 1124.

The Court discussed the application of Section 77(6) (A) in the following direct quote.

Under subsection 6(a) an act will be regarded as extending over a period, and so treated as done at the end of that period, if an employer maintains and keeps in force a discriminatory regime, rule, practice or principle which had a clear and adverse effect on the complainant (Barclay Bank PLC v Kapur [1989]ILRM 387). This sub section would apply , where, for example , an employer pursues a policy or practice of not affording certain benefits to employees who brought equality claims . In such  case  the time limit will only run from the time the policy or practice is discontinued …..

The Court pointed to authority in an England and Wales Court of Appeal case in Robertson V Bexley Community Centre [2003] IRLR 434 that an act “occurring after the presentation of the complainant’s complaint” may not be taken into account when considering if a continuum existed?

The Court went on to adopt the reasoning in another Court of Appeal case in Arthur v London Eastern Railway ltd [2007] IRLR 58, where Mummery J held that to consider a complaint of an act as part of a continuum, there must be an act within the statutory time limit permitted.

“There must be an act (or failure) within the three-month period, but the complaint is not confined to that act (or failure) the last act (or failure) within the three-month period may be treated as part of a series of similar acts (of failures) occurring outside that period. If it is, a complaint about the whole series of similar acts (of failures) will be treated as in time ….

It may not be possible with 48(4) by reference, for example to a connecting rule, practice, scheme or policy, but there may be some link between them which makes it just and reasonable for them to be treated as in time and for the complainant to rely on them”

In A Store v A Worker [2016]27 ELR 250, the Labour Court adopted the above reasoning and found that the acts complained of constituted a continuum.

I consider the reasoning applied to be informative in this case

On what is alleged by the complainant, it is clear to the court that the question of whether the totality of her complaints can be considered falls to be considered by application of s.77(5)(a) of the Act. Hence the Court must consider

(a) if any acts of sexual harassment occurred within the limitation period 18 June 2012 and 17 December 2012

And

(b) if all the incidents alleged to constitute sexual harassment, if they occurred and if they should be properly regarded as acts of sexual harassment, are sufficiently connected to any acts which occurred within the time limit to constitute a continuum. That is a question to be decided on evidence.

Later in the case, the Court in applying Section 77 (5) (a) of the act held that

The totality of the conduct complained of is cognisable in considering her complaint

The question posed on whether a continuum, therefore will be decided on the evidence in this case. Hurley and a Store v A Worker applied.

Burden of Proof

Section 85A provides

85A. — (1) Where in any proceeding’s 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.

S. 85 (4) In this section ‘discrimination’ includes —

(a) indirect discrimination,

(b) victimisation,

(c) harassment or sexual harassment,

…..

In Valpeters v Melbury Developments ltd [2010] ELR 64, the Labour Court set out the evidential burden to be met by the complainant before a prima facie case can be established

Section 85 A 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 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 85 A places the burden of establishing the primary facts squarely on the complainant and the language of this provision admits no exceptions to that evidential rule.

Complaints of Discrimination CA-00027106-001

The Complainant has alleged that she experienced a continuum of incidents of discrimination and was treated less favourably on grounds of her race from 21 December 2017 to the most recent date cited as 9 October 2018. The Complaint was lodged on 15 March 2019. I find that I can consider the events through the continuum present and that 9 October 2018 is the most recent date of discrimination cited.

The Respondent has rejected these complaints. I have listened carefully to all party’s evidence as adduced.

I propose to frame my findings on the 5 incidents reported.

Incident 1. 21 December 2017

The Complainant submitted that she was treated less favourably because of her race during a visit to the canteen for a Christmas lunch. She described this as watershed moment where her experiences at work changed and she was targeted because of her race from that day forward.

I am aware that the French Team was a newly assembled team and I established that the Complainant was joined by two other mixed-race colleagues among the remaining 15 white French nationals. I accept that she was a new employee in a country and in a company in which she had no prior experience. The Complainant is a French National, who has freedom to travel within the EU. She was clearly finding her feet in this employment, the subject matter of which was new to her. She undertook 2.5 weeks of induction and seems to have had an uneventful work experience until this incident, some 5 weeks post commencement of employment. She had acknowledged receipt of a new lap top earlier in December and had expressed an interest in volunteering on a benevolent programme run by the respondent.

However, on the day of the canteen incident, the complainant attributed her experience of discrimination as being treated less favourably by 3 servers to an unknown customer in the canteen queue. In this I found her recollection of her comparator to be vague and inconsistent and was not accurately corroborated by Mr A, as he had already completed his lunch from a different area. I studied the photos submitted of the servery areas and the samples of the plate and take away box.

I found an inconsistency in her evidence in terms of the location of her comparator as it varied from standing in front of two behind her. I was particularly mindful of how the complainant formulated her complaint in the direct aftermath of the incident. I accept that the notes maintained by the respondent mention that the complainant attributed the action to her race. I also note that the eventual report by Mr C, shared with the respondent, and not the complainant, disputed the racial element and rested the outcome on service pressures. I appreciate that this informed the narrative in subsequent tri partite conversation between Ms M, Ms C and the complainant in February 2018.

I would have preferred to see that the complainant had made a statement or compiled an incident report on the day of the event as her memory of the event carried a high level of perceived discrimination, however, I found her very unclear on the sequence of events. In her response to me, she was unclear as to what she asked Ms M to achieve for her in the aftermath of 21 December.

I note that the respondent addressed the matter as a hospitality issue from the “get go “and they understood that it had been resolved and closed as a hospitality issue. The Complainant did not dissuade them from that view at any time and seems to have actioned the agreed resolution by returning to the canteen to have lunch with a friend in June.

She, herself accepts that she did not raise the matter again.

The Complainant now describes this as the antecedence of the discrimination she experienced, and her working life changed from that day forward. This required me to look very carefully at the evidence adduced from that day.

While I appreciate that the Complainant had an unacceptable serving experience in the canteen on 21 December 2017, she has not proved that this occurred because of her race. It is regrettable that the respondent did not invite the complainant to forward her own written complaint of that day. I found she would also have benefitted from receiving a copy of the completed report. It seemed unusual to me that neither she nor Mr A were interviewed as part of this process, but I have not inferred discrimination by that omission. Instead, I established a noted service gap in an externally provided service and systems for resolution therein.

I found that Ms M  and Ms S acted in good faith in navigating a resolution through the externally provided canteen facility , however , it is clear to me that the complainant did not have a sense of ownership of her complaint and this may have caused her to be a bit “ lost “ in the process and to misinterpret the resolution she agreed to  . She was in the early days of employment where she very clearly wanted to impress and belong. She was building her social supports and was greatly embarrassed to be treated in the manner she was treated. I found her recollection of the immediate aftermath of the incident to be extremely poor.

I also had difficulty with the complainant’s responses where she submitted that her acceptance of lunch as a resolution was underwritten by good manners and a respect for “the corporate way “but that the matter was not really resolved for her.

I am struck by the complainant’s omission to raise her lingering dissatisfaction about this during her employment. This is in stark contrast to the case relied on by the complainant, that of Dublin Bus v Mc Camley, EDA 164, where issues crystallised into grievances in the case.  I note that the complainant returned to work the next day and then subsequently participated in the resolution recorded by the respondent. I have been struck by her vulnerability as a newly arrived employee during this time , however ,I have not established supporting facts from which racial discrimination can be inferred .She has not proved that her race was the causal connection to her treatment and I accept that the respondent through the externally provided canteen experienced a peak in service that day and the complainant was rudely  treated  for which she received and accepted an apology . she also executed the voucher given in resolution.

Incident 2

The Complainant spoke of her isolation at work following this incident where she received some negative comments on her appearance. She attributed these to arising from her race. She did express clarity in these recollections and once again demonstrated a high level of perceived discrimination against her work mates both within and outside work. I appreciate that these were very real for her at that time .

She placed a high emphasis on being targeted and moved in her work location. This was not corroborated by Mr A who said moving seats was a universally accepted practice. The Complainant told the hearing that she had made a request to exchange seats with a named colleague in December 2017. I reviewed photos of the seating area and accept that the complainant relocated to seat next to Manager Ms S. I would have liked to have met Manager A at hearing, but she was not available.

I accept that the complainant took some time to identify with the French team. I accept that she co-operated fully with the expanded probation process due to an acknowledged technical skills gap. she told the hearing that she was happy to sign for the extension to her probation. I noted that the complainant had not made any comments in the spaces provided for her comments.

I can accept that the complainant took some time to settle in and “gel” to her new role and this caused her some unease. I accept that she adopted a positive and respectful demeanour at work and did not articulate that she was experiencing any racially motivated incidents during these months through the company procedures. It seemed to me that she did make some statements regarding race to her managers, but these were not clearly formalised through the company procedures and referred to external experiences also. I found that these statements were managed by the complainant herself and I think she hoped that a manager would automatically action throughput. However, I cannot find just where they were requested by her to do this. The complainant told me that she had not consulted the employee procedures dossier. The Complainant by her own admission said that she was following the “corporate way “

 I can accept that the complainant faced challenges and uncertainty in fitting in during the early days of 2018 through an element of loneliness and technical skills gap, which she went on to manage successfully with Ms S. I have found that she certainly had a hesitancy in group identification and she did not feel accepted at the respondent business. I was troubled by the complainant’s evidence that for her ,being seen with a manager walking on the aisle gave the impression of imminent punishment.

I was also troubled at the dichotomy in her reported encounters with Managers at the respondent employment. On one level, she told me her concerns were minimised and dismissed and, on another platform, dated 6 November to Ms B, she wrote

“Grievance is far from my intentions “I have already voiced my concerns to my direct line manager and area manager. They have been very supportive and professional in the matter. I was assured and explained how the company can deal with and how to come by to them if needed “

This suggests to me that the complainant was conversant with the pathway of company procedures, but they were not at the fore front of her mind. I am satisfied that she knew of their existence.

However, while I am not able to analyse the complainants physical/mental health presentation during her employment. She assured me that she had no history of mental illness prior to September 2018.

The Chronology of medical documentation suggests an earlier onset of illness, but I cannot probe this outside hearing directly from a Medical practitioner. However, I was struck by Ms M’s evidence on how disturbed she found the complainant on September 18 and she accelerated her to the wellness centre in her best interests. It may be that the complainant felt traumatised from that acceleration. On balance I accept Ms M was extremely concerned at the complainant’s presentation on that day.

 I accept her evidence in that regard and find that the complainant was highly critical of Ms M personally in response to that interaction. She directed a condensed criticism that she found herself in an “illness “situation directly from work. I formed the view that she somehow blamed her for her condition, which prompted her to address a very serious mental health condition. Yet, her commendation of Ms Bs support of November post-dated this. It is not lost on me that that the complainant was prioritising her master’s programme at all junctures of her employment. She refers to it in pole position of priorities on November 6. She secured an extension to her submission deadline while in hospital in December 2018 and most interesting, Mr F offered the complainant a window to address her intention to resign by activation of the grievance procedure. The complainant sought to be undisturbed to May 10, 2019. When I asked her the significance of this date, she told me that she was undertaking her exams. It seemed to me that the master’s programme along with a new job in a new country together may have proved a stressor for the complainant. I was pleased to hear the complainant confirm that she had secured her master’s with a mention on the last day of hearing.

 However, I have not identified facts from which I can infer that the behaviours she experienced at work during this time constituted less favourable treatment on grounds of race. I cannot establish that she was isolated at work due to her race.

The Complainant has requested that I consider that the respondent neglect of her wellbeing at work triggered her mental health breakdown in September 2018. I cannot draw that inference for several reasons. That would require a specialist diagnosis as advanced by a practicing Specialist. I note that the complainant was highly mobile during her initial sick leave between France and the UK, returning to Ireland mid December 2018 and just before her compulsory detention at a Mental Health Unit. By then she had been out of work almost 2 months and except for “wellness visits “at the respondent premises, the complainant had not attended the workplace.

I note that the complainant submitted that the colleague of D insulted her in the corridor during one of those visits in October 2018. He told her “he would spit on her grave “

I note that she submitted a partly  anonymised “ cry for help “ to Manager A and Ms B some 4 days post her departure on sick leave dated 22 September , suggesting that “ we had stopped caring for ourselves as individual” The letter read  like a ventilation of frustrations with employment , but was not linked to race, nor did it seek initiation of a course of action  .

It seems clear to me that the complainant intended to leave employment around this time. I understand that she decided not to attend a prescheduled interview due to her hospitalisation in December 2018. She subsequently relocated to Limerick in March 2018. This relocation prompted some difficulties in maintaining contact to effect payment of income protection, but payment was eventually made for 2-3 months.

I have given some consideration to the circumstances advanced by the complainant surrounding her emergency hospital detention for 1 week in December 2018. She told me that she was highly stressed because of the “fall out “from house parties proximate to her flat. These parties did not invite her presence and were causing her sleep loss. She reported this to bodies outside this jurisdiction, but not to the Gardai here. She referred to an email where a party apologised but she did not exhibit this.

I have not been able to link this hospital admission to the events complained of. I am supported in this by the translated letter from the complainant’s French doctor where “specialist treatment “was recommended on 11 December, having seen the complainant “several times “

I sought clarification on pages 46 and 47 of the medical report but I must conclude that I could not piece these two reports together in a meaningful way. For me, some redaction had occurred.

I observed that the Human Resource Dept became involved formally from November 6 and were assured by the complainant that her health was improving.

She has instead provided a very compelling description of a perceived discrimination brought on by her defined sense of lack of well being and belonging on a new team from a sociological perspective. I accept that the complainant lost her way within the employment and underplayed her true sense of disconnect by adopting an adherence to her need to practice the corporate way. I had no sense that the respondent made a demand on her to communicate this way.

However, the burden of proof requires facts of sufficient  significance to support a claim for discrimination on race grounds. I have not established the required facts to satisfy  the burden of proof in the case.                                

I find that the complainant has not established a prima facie case that she was discriminated against in terms of her conditions of employment between 21 November 2017 and 14 March 2019.

Harassment CA-00027106-002

The Complainant submitted that she was subjected to negative name calling and misplaced jokes incessantly at work. The Complainant confirmed that she had brought it to 4 Managers and the behaviour was not curtailed. She gave evidence on the exact terminology used. It came to a height on 18 September 2018, when a former friend at work referred to her in despicable language. The Complainant accepted that D apologised for this, and she scolded him directly for the utterance, but was not clear whether she had accepted the apology. There was a clear dispute in how Mr S recalled this event and how the complainant recalled it. However, the respondent accepted that the phrases were articulated by D in a work setting. D was not disciplined.

The Respondent argued that it operated an anti-harassment policy and offered conflict resolution via a tri partite means immediately on 18 September 2018. This was refused by the complainant, who subsequently developed an illness and did not return to the workplace. The Complainant did not record the incident or seek an investigation and submitted that their hands were tied on that front due to the complainant’s absence through illness for an extended period.

Counsel for the complainant submitted that the respondent had harassed the complainant and by their inaction could not avail of the defence in section 14(2)(a) of the Act.

A careful perusal of the respondent policies depicts a robust policy on management of harassment in a work setting.

It is very clear to me that this was an issue which remained at large on the respondent to do list. This is reflected in the repeated enquiries by Ms M on the complainants well being and preparedness to address “a work-related matter “once she recovered from her extended illness i.e. from 18 September onwards.

I am satisfied that the respondent offered the complainant the opportunity to engage on the negative name calling on 18 September on that day and kept the matter live during her extended illness by checking whether the complainant was deemed fit to engage. Occupational Health wrote and told the respondent she was not. It was clear to me that once again, the respondent ran with the management of an issue which may have been better placed to be owned by the complainant herself. However, I must add that I accept that this action was tinged with benevolence by the respondent.

 The Complainant was of the view that nobody cared about her and everyone in authority was avoiding her. I appreciate that Mr A reflected this in his evidence but qualified it by his more worrisome reportage of the complainants presiding illness in December 2018.  

To avail of the defence in s. 14(A)(2), the respondent must show that it took such steps that were reasonably practicable to prevent the harasser from harassing the victim.

I have reviewed the company anti-harassment policy and notification of training received by managers which was not disputed by the complainant. I noted that there were some situational points at variance with the SI 208 /2012, the code of practice on harassment in Ireland. I took issue with reference to military veterans and the stated grounds for harassment. These were peripheral issues.

I found that the complainant was exposed to a “wholly unacceptable personalised abuse “from D in September 2018. Mc Camley. I have not established any certainty surrounding the other reports of name calling referred to by the complainant in her evidence.

I found that she satisfied the burden of proof in that the harassment by D was directed towards her because of her race.

However, the respondent is entitled to rely on the defence under Section 14(A) (2) and cannot be held liable for this action. I say this as the updated policy of Harassment and Bullying was open and available to complainant. It contained a zero-tolerance clause on harassment.

I have been unable to validate the reported utterance from Ds colleague on October 9, 2018

CA-00027106-003

Victimisation  

The Complainant claims that she was victimised when she received two occurrences regarding her attendance, had her probation extended and was denied income protection following her raising her concerns of discrimination during December 21, 2017.

These allegations were denied by the respondent.

The Labour Court has considered victimisation pursuant to S 74(2) of the Act in Dept of Defence v Barrett EDA 1017

It is well settled that the protection against victimisation is not limited to situations in which a complaint of discrimination is subsequently upheld. however, the catalyst alleged for adverse treatment complained of must, in some sense, come within the ambit of one of the protected acts referred to in section 74(2)

The Complainant has confirmed that she did not activate any of the respondent procedures in this case. This was accepted by the Respondent who intended to address the “D” incident once she was deemed medically fit to do so. She made the complaint to WRC on 15 March 2019 without that engagement. She did not return to work from September 2018.

I have considered the respondent policies on Dignity, Respect, Harassment and Bullying and Business conduct. I t is clear that the complainant does not need to have a successful claim for harassment to support a claim for victimisation, Rene O Reilly v DCU ADJ 20428

I must however track the events complained of to ascertain if they comply with the protected acts outlined in S 74(2) and whether adverse treatment occurred in response to taking that protected act. Barrett 

I must conclude that the complainant referred to her view that her treatment in the canteen arose from her race. She also told Mr S that D directed his comments at her due to her race. She did not action either the informal/formal aspects of any policy open to her. However, I accept that she did arise the topic of her race in the context of her employment.

However, I have not identified any adverse treatment directed towards her with commitment and dedicated

1. The Complainant received an occurrence for early departure from work following the canteen incident. She did not lose money, travelled home in the respondent taxi and participated in a resolution of the issue informed by the respondent commissioned investigation. I accept Ms S evidence that the complainant was not to blame for these occurrences and they did not come against her in assessing her performance in probation.

2. The Complainant opened her case claiming that her probation had been extended as a direct consequence of her raising the topic of her race at work. She distanced completely from this in her evidence and agreed with Ms S who submitted in her evidence that the complainant acknowledged that she had a technical skills gap which warranted a brief extension of probation.

3 The complainant was not penalised in the allocation of income protection when her paid sick leave expired. She told the hearing she had received paid sick pay during her absence. This was followed by income protection paid at 75% of salary. The delay in settling the payment of income protection arose due to the complainant’s mobility during March 2019 and securing her new contact details and her co operation with the form filling. I note that this was still active at the time of the complainant’s resignation in May 2019 when Mr F pleaded with the complainant to follow this up.

Based on all the above, I find that the complainant has not established a prima facie case of victimisation on grounds of her race.

On balance I found that the respondent reached out to the complainant to seek to help her navigate the company procedure on several occasions. I also note that they maintained a respectful distance to permit her a full recovery from her mental health condition, while gently enquiring for her welfare. The complainant was maintained on the pay roll and was provided with the “wellness support model “operated by the respondent. Income continuance was diving tailed post sick leave expiration.

Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I decide in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.

I have concluded my investigation.

CA-00027106-001

I have found that the complainant has not established a prima facie case of discrimination in relation to her complaints of discrimination on grounds of race.

CA-00027106-002

I have found that the complainant has satisfied the burden of proof on harassment, but the respondent is entitled to rely on the defence in section 14(2)A) of the Act.

Ca-00027106-003

I have found that the complainant has not established a prima facie case of discrimination in relation to her complaints of Victimisation on grounds of race.

Discrimination on grounds of race, harassment, victimisation.