ADJ-00030099

Complainant

Respondent

Parties

Olufunmilayo  Olowookere

Wayfair Stores Limited

Representatives

Self-Represented

Ms. Grainne Quinn BL, instructed by Ronan Daly Jermyn 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-00040096-001

27/09/2020

The Complainant commenced employment with the Respondent on 5th November 2018. At all times the Complainant’s role was described as that of “customer services representative”. The Complainant was a permanent, salaried employee of the Respondent, in receipt of a monthly payment of €2,083.00.

On 27th September 2020, the Complainant lodged the present complaint with the Commission. Herein she alleged that she had been discriminated against on the grounds of race. In particular, the Complainant referred to unfair treatment regarding the application of probation criteria, issues regarding her line manager, the Respondent’s failure to provide education support, a failure to include the Complainant on a secondment to her role and the non-payment of a bonus. By response, the Respondent denied all of these allegations and submitted that the Complainant had not suffered any discrimination in the course of her employment. The Respondent further submitted that many of the Complainant’s allegations of discrimination were out of time.

Hearings in relation to this matter were convened for 26th August 2021 & 20th January 2022. This hearing 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.

As the preliminary issues raised by the Respondent will be considered following a summary of the factual matrix presented by the parties.    

The Complainant commenced employment with the Respondent on 5th November 2018. The Complainant’s role was that of a “customer services representative”, based remotely. The Complainant’s employment was initially subject to a six-month probationary period. Following a training period of four weeks, the Complainant commenced her duties, and was provided with a series of targets in relation to the same. During the probationary period, the Complainant received feedback to the effect that she was performing well and no issues were raised regarding the same. On 1st May 2019, the Complainant was shocked to learn that she did not pass her probation. When the Complainant queries the same, she was informed that she failed the probation due to issues regarding the CSAT, or customer satisfaction, score. This was of concern to the Complainant as this metric had not been included in the targets set for her at the outset of her employment.

The second issue raised by the Complainant related to the Respondent’s failure to provide an education reimbursement benefit. On 20th February 2019, the Complainant applied for the same in accordance with the Respondent’s internal procedures. On receipt of the application, the Complainant’s line manager informed her that it would be approved subject to director’s approval. Despite this assurance, the Complainant was subsequently informed that she had not met the criteria for the benefit. In particular, she was informed that she had not met the criterion of remaining with the company for three months following receipt of the benefit. In this regard, it was stated that the Complainant had not passed her probation, and the Respondent did not have assurance that she would be in employment for the prescribed period of time. The Complainant alleged that she was denied this benefit on the grounds of race, as others that applied in the same circumstance received the benefit.

The next issue raised by the Complainant related to an application for a secondment position. In early 2020, an advertisement relating to a secondment position was communicated internally. On 26th March 2020, the Complainant applied for this position, in accordance with the Respondent’s internal policies. The following day, the Complainant was informed that her application would not proceed due to issue regarding her CAST score and absence. At this time, the Complainant became aware of four other colleagues that were similarly removed from consideration due to a failure to meet the Respondent’s standards. On 30th March 2020, three of these persons were removed from consideration were accepted. This apparently occurred on the basis that two of them had a second language and that one attended mentoring training. This caused the Complainant great concern as again, the metrics for application had been amended after the date, and she was not presented with an opportunity to advocate for her entry onto the scheme. In particular, the Complainant submitted that she was never asked if she had a second language, and that absence of the same was simply assumed. The Complainant submitted that this constituted discrimination on the grounds of race as those that were accepted were of a different racial background to her.

The Complainant also raised issues with the non-payment of her bonus. She stated that the Respondent has a policy whereby if three occasions of lateness are recorded in a month, they will not be paid their bonus for that month. In May 2020, the Complainant was informed that she would not receive her bonus for the month of April, as she had been late three times in that month. The Complainant queried this as she knew it not to be the case, and the log in records demonstrated the same. By response, the Complainant’s line manager advised that while the Complainant had logged in on time, she had not opened the internal system and was hence deemed to be late. The Complainant submitted that this system was not recording correctly, in this regard she notified her line manager of specific examples of the system recording hours incorrectly. The line manager in question stated that he would examine this and reply in due course, however no reply was received. The Complainant submitted that this constituted discrimination as other colleagues of a different racial background had these occasions of lateness removed from their files. She submitted that when she raised these issues she was informed that the matter would be examined, however nothing came of the same.

In summary, the Complainant submitted that these matters constituted an ongoing pattern of racial discrimination by the Respondent. She submitted that on numerous occasions, the Respondent changed criteria to ensure that she could not avail of benefit or would suffer a detriment. She submitted that such matters did not occur with regard to her colleagues of a different racial background and consequently, the poor treatment at the hands of her employer constituted discrimination on the grounds of race.

At the outset, the Respondent denied the Complainant’s allegations of discrimination.

Regarding the allegation in respect of the extension of the Complainant’s probationary period, the Respondent submitted that the Complainant’s employment was initially contingent of the successful completion of probation. This period was for a period of six months, with the option to increase the same to nine months in certain circumstances. In November 2018, shortly after the commencement of the Complainant’s employment, the Respondent added the criteria of “CSAT<” or customer satisfaction, to the criteria by which this probation would be evaluated. This new criterion was communicated to the Complainant at the relevant time and she received ongoing updates in relation to the same. At her first probationary review meeting, the Complainant was deemed to have not met the Respondent’s standard in relation to the same and her probation was extended accordingly. Following a further three-month period, the Complainant had demonstrated significant improvement in this area and she was deemed to have passed her probation. The Respondent submitted that extension of probation on the grounds of failure to meet this criterion is relatively common. In this regard, the Respondent referred to three members of the Complainant’s team that had their probation extended on these grounds.

Regarding the allegation in respect of the education scheme, the Complainant was initially informed that acceptance to this scheme was dependent on manger’s approval. In reviewing the Complainant’s application, it became apparent that the Complainant had recently had her probation extended. As one of the requirements was that the Complainant would remain in employment, and the outcome of the probationary process was, at that point, unclear, the Complainant’s application was denied. It was submitted that any other employee that applied for this position would be treated in this manner. Following the same, once the Complainant had completed her probationary period, she was invited to re-apply for the scheme. At this point the Complainant declined to do so.

On 20th March, the Respondent sent an email regarding secondment to a project support role. The Complainant applied for the same on 26th March 2020. At this point the Complainant’s line manager had already approved a number of other employees for acceptance to the role. Following the same, the Complainant’s line manager became aware that approved employees required a low rate of absence from work and a low CSAT score prior to being appointed. At this point, the manager appointed one of the Complainant’s colleagues on the basis of their service and experience. During this process, it further became apparent that a second language was essential for the fulfilment of he role. Three of the Complainant’s colleagues were appointed on the basis that they had previous declared that they were proficient in a second language. As the Complainant had not indicated that she was proficient in a second language she was not considered for the role. The Respondent submitted that the Complainant had not suffered any discrimination regarding this process. In this regard they pointed to another colleague of the Complainant’s that was not processed due to a lack of language skills.

Regarding the non-payment of the bonus, the Respondent submitted that a similar situation arose in November 2019. The payment of the relevant bonus is contingent on the employee having fewer than three “Late to Ready” instances in the previous month. An employee is deemed to be “Late to Ready” when they have not logged onto both the phone and emails systems within two minutes of the commencement of their shift. In November 2019, the Complainant’s line manager met with her and determined that there may have been a miscommunication regarding the requirement. In light of the same, the Complainant’s line manager reduced the instances to allow her to receive her bonus. In April 2020 the Complainant had five “Late to Ready” instances. The Complainant stated that two of these were due to issues with her broadband connection and that the other three were due to issues with one of the systems. On examination of the issue, the Complainant’s manager determined that the Complainant had not raised IT queries regarding her inability to log on in time, as previously requested. In the circumstances the Respondent stated that as the Complainant had five “Late to Ready” instances in the previous month, her bonus was not payable. The Respondent submitted that any other employee would have been treated in this manner and consequently the allegation of discrimination was denied.

On 2nd April 2019, the Complainant raised a formal grievance regarding these matters in accordance with the terms of the Respondent’s internal policies. Following correspondence on the issue, an independent manager was appointed in investigate the allegations. As part of this process the investigator took thirteen separate witness statements. An investigation report was delivered to the parties on 23rd July 2020. This concluded that the Complainant’s allegations as to discrimination were unfounded but that there had been a lack of communication or misunderstanding between the parties.

By submission, the Respondent’s representative stated that that the Complainant had not proved the primary facts from which may create an inference of discrimination. They submitted that while the Complainant has alleged wrongdoing on the part of the Respondent, the allegation of discrimination is based on “mere speculation” and consequently cannot meet the test outlined in Section 85(A) of the Act.

Without prejudice to the foregoing, the Respondent submitted that the first two allegations raised by the Complainant occurred in excess of six months prior to the lodgement of the complaint and as a result are statute barred.  

The Respondent had submitted that two of the allegations raised by the Complaint, those relating to the extensions of the probationary period and access to the education support scheme, occurred in excess of six months prior to referral of the instant complaint and are, consequently, statute barred.

In this regard, Section 77(5A) of the Acts provides that,

“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, as the case may be, the date of its most recent occurrence.”

Section 77(6A) provides that,

“discrimination or victimisation occurs—

(i)                  if the act constituting it extends over a period, at the end of the period”

The application of these provisions was extensively considered by the Labour Court in the matter of Ann Hurley -v- Co Cork VEC, EDA 1124. Here the Court stated that,

“Subsection (5) and subsection (6A) of s.77 deal with different forms of continuing discrimination or victimisation. Under subsection (6A), 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 has had a clear and adverse effect on the complainant…Subsection (5) of s.77 deals with a situation in which there are a series of separate acts or omissions which, while not forming part of regime, rule, practice or principle, are sufficiently connected so as to constitute a continuum.”

In the present complaint, the Complainant has alleged that the Respondent acted in a discriminatory manner towards her on a number of occasions. On each of these occasions, it is alleged that the Respondent amended their own internal criteria to exclude the Complainant from a benefit, or to cause her a detriment. In this regard, I find that the separate allegations referenced by the Complainant are sufficiently connected so as to constitute a continuum. In light of the same, I find that the all of the complaints submitted by the Complainant are in time for the purposes of the Act.

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

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

“For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances, discrimination shall be taken to occur where:

(a) a person is treated less favourably than another person is, has been or would be treated in a comparable situation…which—

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned”

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

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

“Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.”

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

“The first requirement is that the claimant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination.

It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there is no infringement of the principle of equal treatment”.

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

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

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

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

In the matter of Cork City Council v McCarthy EDA 0821 the Labour Court held as follows:

“The type or range of facts which may be relied upon by a Complainant may vary significantly from case to case. The law provides that the probative burden shifts where a Complainant proves facts from which it may be presumed that there has been direct or indirect discrimination. The language used indicates that where the primary facts alleged are proved it remains for the Court to decide if the inference of presumption contended for can properly be drawn from those facts. This entails a consideration of the range of conclusions which may appropriately be drawn to explain a particular fact or a set of facts which are proved in evidence. At the initial stage the Complainant is merely seeking to establish a prima facie case. Hence, it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts.”

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

“Section 85A of the Act provides for the allocation of the probative burden in cases within its ambit. This requires that the Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.”

The first matter referred by the Complainant relates to the extension of her probationary period. From the evidence adduced, it is common case that the criterion of CSAT was not initially included within the Complainant’s metrics for the successful completion of her probation. It is further agreed that this was added to the metrics during the Complainant’s probation. While a dispute has arisen regarding the manner in which the Complainant was informed of the same, I accept the Respondent’s evidence that this metric was included for all staff on probation. I further accept the Respondent’s evidence that staff members other than the Complainant had their probation extended on foot of this criterion. As a consequence of the same, I find that the Complainant has not proven the primary facts on which she seeks to infer an allegation of discrimination.

The second allegation raised by the Complainant relates to her application for education assistance benefit. The Complainant has taken issue with the fact that this was refused on the basis of her being on extended probation at the relevant time. While I understand that Complainant’s frustration in this regard, it is apparent that the position adopted by the Respondent is not entirely unreasonable. At the relevant point in time the Complainant remained on probation. An inherent characteristic of the same is the possibility that the Complainant would not be deemed suitable for the role and her employment would terminate. In these circumstances, the Respondent was unsure that the Complainant would remain in employment and denied access to the benefit on these grounds. This outcome, while disappointing for the Complainant, is not unreasonable. I further note that the Respondent invited the Complainant to engage the process following her permanent appointment. In these circumstances, I find that the Complainant has not proven the primary facts by which she seeks to infer an allegation of discrimination.

Regarding the application for secondment, it is apparent that the Respondent committed a series of errors in the handling of the same. Firstly, it is apparent that persons were appointed prior to the closing date for applications. Secondly, it is further apparent that some of these persons did not meet the Respondent’s own criteria for appointment. Thereafter, the criteria were changed so as to allow the persons that had been appointed to remain appointed. Regarding the new criteria, the requirement for a second language, the Complainant was not asked whether she met the same, with the Respondent relying on the information on file to confirm the same. From this series of events, all of which are not in contest, it is apparent that the Complainant was poorly treated in this application for secondment. Nonetheless, I find that no evidence has been presented to suggest that this sequence of events is more that a poorly handled internal recruitment procedure and does not create a prima facia case for an allegation of discrimination on the grounds of race.

Finally, in relation to the withholding of the bonus payment for the month of April 2020, I note that this occurred on foot of the application of the Respondent’s own procedures. While the Complainant raised issue regarding the recording of her hours, this issue exists on a company-wide basis and cannot be said to affect the Complainant in particular. Regarding the allegation of the Complainant’s line manager failing to consult with her regarding the same, I note that he previously did so, to the Complainant’s ultimate benefit.

Having regard to the totality of the evidence presented, I find that the Complainant has not established the primary facts which may raise a presumption of discrimination. The Complainant has raised examples of poor management and poor communication on the part of management. However, in many cases these allegations relate to matters that are company wide and do not relate to the Complainant specifically. In other matters, the Complainant attribution of a discriminatory motivation for the Respondent’s actions constitutes speculation. As a consequence of the same, I find that the Complainant was not discriminated against in the course of her employment and consequently her application fails.

I find that the Complainant was not discriminated against in the course of her employment and consequently her application fails.

Probation, Secondment, Bonus, Discrimination