ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00025632
Parties:
| Complainant | Respondent |
Anonymised Parties | Employee | Employer |
Representatives | Self-Represented | Ms. Mary Gavin, Hayes Solicitors |
Complaint:
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-00032555-001 | 28/11/2019 |
Date of Adjudication Hearing: 06/04/2021
Workplace Relations Commission Adjudication Officer: Brian Dolan
Procedure:
In accordance Section 79 of the Employment Equality Acts, 1998 - 2015,following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
Background:
The Respondent is a software company delivering software services to global customers. The Complainant commenced employment with the Respondent on 27th May 2019. During the relevant period for the purposes of the complaint, the Complainant was a full-time, permanent employee. The Complainant’s rate of remuneration was €39,000 per annum, equating to a weekly income of €750. On 28th November 2019 the Complainant lodged a complaint under the Employment Equality Act with the commission. Herein, he alleged that he was discriminated against by reason of his gender, in addition to an allegation that he was victimised by the Respondent. In particular, the Complainant alleged that he was subjected to a hostile working environment during the currency of his employment. The Complainant submitted that this constituted discrimination as his line manager and other members of senior management were all female and treated him less favourably on the ground of his gender. In answering the claim, the Respondent denied the Complainant’s interpretations of events and submitted that the complaint was not actionable under the Employment Equality Acts in any event. A hearing in relation to this matter was convened and finalised on 6th April 2021. This was conducted by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings. No technical issues were experienced by either side during the hearing. Both parties issued substantial written submissions in advance of the hearing. Both parties availed of the opportunity to question the evidence of the opposing side. No issues as to my jurisdiction to hear the complaint were raised at any stage of the proceedings. Neither party made an application to anonymise the party names as they appear. |
Summary of Complainant’s Case:
The Complainant commenced employment with the Respondent on 27th May 2019. At all times his role was described as that of “Business Development Representative”. At the commencement of his employment matters went well for the Complainant and he felt that he was getting along well with management and his team. Things began to change for the complainant from the 3rd October 2019, when he was informed that his probation would be extended until 27th January 2020. The Complainant submitted that the rationale behind this extension was unspecific, with the Respondent simply stating that they “expected more” from him. On 21st October, the Complainant requested a summary of his targets for the period. On the same date, the Complainant was called to a meeting whereby he was informed that he would not permitted to attend an international customer meeting. This came as a shock to the Complainant as he had been previously assured that his attendance at the same would be permitted. When he put this to his line manager, she denied the existence of such a commitment. Following the same, the Complainant issued a complaint under the Respondent’s “Compliance and Ethics” policy. Herein, he alleged that his manager had misled him regarding his attendance at the sales meeting and that his personal data was not being adequately protected. In addition, the Complainant alleged that he was not provided with set targets regarding his probationary period. A meeting was arranged in respect of these issues for 23rd October, this meeting was attended by the Complainant and two members of management. Here, an agreement was reached to set specifics targets for the Complainant to achieve during the remainder of his probationary period. Regarding the allegation that the Complainant’s manager had lied to him regarding the business trip, he was advised that the Respondent “did not believe”that his line manager would directly contradict herself in this manner, as she had nothing to gain from such deception. On 6th November the Complainant received an email advising that his monthly target breakdown had been altered. As this appeared to happen to him only, it was submitted that this was further evidence of different treatment from his co-workers. In summary, the Complainant alleged that he had been subjected to adverse treatment. He submitted that this constituted discrimination as his line manager and other managers were of a different gender to him. He stated that he felt that he was a person that spoke his mind and caused annoyance to the Respondent. In answer to a question, the Complainant stated that he had reviewed the company handbook and was aware that the same contained a harassment procedure. When asked why he did not engage with the same, and instead chose to engage with the compliance and ethics policy, the Complainant stated that the issue of his line manager lying to him fell under this policy. In answer to a further question, the Complainant stated that he could not recall when he formed the view that alleged poor treatment he was subjected to arose from gender discrimination. |
Summary of Respondent’s Case:
By response, the Respondent submitted that they denied the Complainant’s account of events on a factual basis, and that the same was not actionable under the Employment Equality Act in any event. At the commencement of his employment, the Complainant was subject to a six-month probationary period. On 3rd October, the Complainant was informed that this probationary period would be extended as he had not achieved certain targets. On that day the Complainant responded acknowledging the extension and stated that “I will be making sure the extra time given to me will lead to the mutually desired outcome.” On 21st October 2019 the Complainant issued a complaint under the Respondent’s compliance and ethics policy. This complaint appeared to stem from the Complainant’s perception that an agreement existed to allow him to travel to a customer meeting if he hit a certain target. The Complainant alleged his line manger changed her mind in relation to the same a week later. At no point in this complaint, or during the subsequent meeting, did the Complainant make any allegation of discrimination. Following a through examination, an outcome to the compliance and ethics complaint was issued on 4th November 2019. Here, the Complainant informed that his complaint under the compliance and ethics policy was not upheld. On 25th November 2019, the Complainant issued an email to the Respondent entitled “information on intended lawsuit”. While this communication alleged unfair treatment regarding the previous month’s events, at no point did this email make reference to any matter that might constitute gender discrimination. The Respondent responded on 27th November 2019, offering the Complainant the use of the Respondent’s various grievance procedures. Rather than engage with any of the policies the Complainant elected to lodge the present complaint. The Respondent submitted that that Complainant’s case, taken at it’s height, did not constitute discrimination within the meaning of the Employment Equality Acts. They submitted that the Complainant had failed to establish any facts by which a prima facia case of discrimination could be inferred. They further denied that the Complainant had been subjected to any adverse treatment for any reason in the course of his employment. |
Findings and Conclusions:
Section 6 of the Employment Equality Act prohibits discrimination in an employment context. 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)(a) provides that “gender” is 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 he has been subject to adverse treatment on the ground of his gender. In this regard I note that the Complainant has engaged in a lengthy set of correspondence with the Respondent regarding the allegedly poor treatment he had suffered at the hands of management. It is of note that the first time the Complaint sought to bring these matters to the attention of the Respondent, he did so utilising the Respondent’s ethics and compliance policy. When asked why he chose to engage with this policy rather than the anti-discrimination policy, the Complainant stated that he believed the primary wrong-doing related to his line manager’s reversal of a perceived benefit. In light of the foregoing, it is clear that the Complainant had not formed the view that the alleged poor treatment arose as consequence of discrimination on the ground of gender at this point. In the Complainant’s further communication entitled “information on intended lawsuit” the Complainant again did not refer to alleged discrimination on the grounds of gender, rather setting out the generalities of his grievances to the Respondent in some detail. Indeed, the “complaint specific details” section of the complaint form again sets out the Complainant’s grievances without establishing how this alleged poor treatment was related to the allegation of gender-based discrimination. When asked directly how these matters relate to the allegation of discrimination, and what particular set of facts led him to this conclusion, the Complainant stated that he had been treated so poorly that discrimination could be only rational explanation for 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. As a consequence of the same, I find that the Complainant was not discriminated against by the Respondent and his complaint is not well founded. Regarding the second part of the Complainant’s claim, that he victimised for raising an issue regarding alleged discriminatory treatment, Section 74(2) of the Act provides that; “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, or (g) an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs.” When asked which of the events set out in the foregoing points occurred, the Complainant was unable to identify any such event. Having regard to the foregoing, I find that the Complainant was not victimised by the Respondent and this section of the complaint is also not well-founded. |
Decision:
in relation to the complaint in accordance with the relevant redress provisions under that Part.
Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.
I find that the evidence presented did not meet the required standard of significance required to establish a prima facie case that in turn would require the Respondent to rebut an inference or presumption of discrimination on the ground of gender. Therefore, I find that this claim is not well founded based on the evidence provided and the Complainant was not discriminated on the ground of gender. In addition to the foregoing, I find that the Complainant was not victimised within the meaning of Section 74 of the Employment Equality Act, and this section of the complaint is similarity not well founded. |
Dated: 9th of July 2021
Workplace Relations Commission Adjudication Officer: Brian Dolan
Key Words:
Gender Discrimination, Prima Facia |