Complainant

Respondent

Parties

Josef  Niedermeier

Hewlett-Packard Galway Limited

Representatives

  Self

 Lewis Silkin

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-00033495-001

06/01/2020

The Complainant commenced his employment with the Respondent on 30th March 2015 as a Cybersecurity Design and Engineering Professional. The Complainant resigned his position and his employment terminated on 26th June 2020.

The Complainant referred his complaint to the Director General of the WRC on 6th January 2020 alleging that he was discriminated against by the Respondent by reason of his age and that he was discriminated against in conditions of employment.

The Complainant submits as follows:

The Complainant alleges that he was discriminated against by reason of his age.

The Complainant submits that there is a clearly marked quiet zone in the workplace. There is a clear rule "no calls in the area". On the morning of 12th August 2019 Mr. R walked several times in the quiet zone talking on the phone. Mr. R is not based in Galway but he spent some time there so the Complainant believed that he knew the rules. The Complainant submits that he approached Mr. R and said "Sorry sir, it is not a good area for a phone call". Mr. R did not apologise and showed no intention of leaving the area. The Complainant pointed to the noise monitor, that was 2 metres from him, and then to the rules on the side of the tables and asked him if he was able to read it. The Complainant moved back to his desk. After several minutes, Mr. R, visibly angry, approached the Complainant at his desk. The Complainant said that he was sitting and Mr. R stood very close to him (approx. 50cm). Mr. R aggressively asked who the Complainant was. He then grabbed the Complainant’s badge. As Mr. R’s badge was upside down and the Complainant was not able to read it, he rotated it. The Complainant submits that he is sure that he did not touch Mr. R but Mr. R said very loudly “No touching” several times. The Complainant submits that he probably tried to give the impression that the Complainant touched him. He also loudly said “I respect you sir” which totally contradicted what he was doing: trying to intimidate the Complainant for daring to ask him to follow the rules. The Complainant contends that Mr. R also said quietly "We will sort it outside" and several other sentences and left. The Complainant was sitting during all this confrontation. He argues that Mr. R’s behaviour was simply aggressive and bullying. It was an ugly experience for the Complainant and colleagues that witnessed it. The Complainant’s colleague immediately offered his assistance as a witness. The Complainant submits that he contacted Mr. R’s manager but she addressed only the problem of “quiet area” rules and ignored the problem of bullying.

The Complainant submits that, as Mr. R’s manager neglected to deal with the issue the Complainant  opened a case in the ‘Open Line’ which is the Respondent’s HR tool for this purpose.

An Open Line Consultant was assigned to the case and contacted the Complainant. The Complainant was asked for a written statement which he sent to the Consultant by email on 20th August 2019. A colleague who witnessed the incident was named. The Consultant promised the Complainant that he would be updated in one or two months. The Complainant submits that he did not receive any update, so he contacted the Consultant at the beginning of the December and again several days later. On 18th December 2019 he received an email with following statement:

"I am writing to let you know that the matter you raised has been closed. Although the outcome is confidential, rest assured that HPE takes these maters seriously. We conducted a comprehensive review of the issue, and have taken appropriate actions to address the issue."

The Complainant submits that he does not believe that "HPE took these matters seriously". Nobody asked his colleague who witnessed the incident for a testimony so it is clear that there was no investigation. The Complainant raised the issue with the Consultant’s boss but he replied the same: the case is closed and the outcome is confidential.

The Complainant submits that the Respondent clearly failed to deal with the case of bullying in accordance with Irish law. He did not receive any information as to how the case was handled and what was the outcome and for that reason the Complainant is seeking third-party support.

At the adjudication hearing, the Complainant submitted that he was not sure what was the reason for Mr. R’s behaviour. The Complainant said that he decided to refer his claim under the Employment Equality Acts alleging age discrimination because there was no option for him to refer a claim “I was discriminated but I don’t know why.” He said that he was not sure if age was the primary reason. He confirmed that he is 56 years of age. The Complainant contended that it could be because he is originally from the Czech Republic.

The Complainant said that, as a result of the incident he decided to resign his employment.

In cross-examination, the Complainant confirmed that he gave notice of approximately 1 month and he agreed to remain in employment until his colleague returned from maternity leave and remained in employment for approximately 3 weeks after his colleague’s return.

The Complainant confirmed that in his complaints and email correspondence at no stage did he raise the matter of age discrimination, explicitly or implicitly.

In his concluding remarks, the Complainant said that he cannot prove that it was about his age but he believes that other cases were dealt with differently. He noted that he does not have access to HR records so he cannot be sure as to how other complaints were dealt with. He said that he had to ask for an update and did not get clear answers whether his case was justified or rejected.

The Respondent submits as follows:

The Respondent is one of the world’s leading enterprise technology companies, headquartered in the US, with operations across the globe in the US, Latin America, Europe, Africa and Asia Pacific and Japan. The Respondent is one of HPE’s legal entities based in Ireland and was the employer of the Complainant at the time of his resignation.  

The Complainant was employed by the Respondent as a Cybersecurity and Design Engineering Professional. The Complainant commenced employment with the Respondent on 30th March 2015. The Complainant resigned from his role and his employment with the Respondent ended on 26th June 2020. A copy of the Complainant’s contract of employment was exhibited at the hearing.

1.1           The Complainant claims that he was subject to discrimination on the grounds of his age. The Respondent strongly denies that the Complainant was discriminated against on the basis of age or any other protected ground. The Complainant has failed to identify a comparator and has failed to adduce any evidence of a relationship or link between the ground of discrimination complained of and any alleged less favourable treatment.  

No comparator

1.2           Section 6(1) of the EEA states that 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 “discriminatory grounds”) which-

(i)    exists,

(ii)   existed but no longer exists;

(iii)  may exist in the future, or

(iv)  is imputed to the person concerned”

1.3           In general, a complainant must prove that he has sustained less favourable treatment as compared with another person in a similar position to the complainant. Therefore, without a comparator, the claim will fail.

1.4           The Respondent submits that the Complainant in the instant case has failed to identify a comparator. The Respondent submits that on this basis alone, the Complainant’s claim cannot succeed.

1.5            

1.6           Prima facie case

1.7            

1.8           The Complainant bears the onus of establishing a prima facie case of treatment contrary to the EEA. In this respect, section 85A of the EEA provides:

“where in any proceedings facts are established by or on behalf of a person from which it may be presumed that prohibited conduct has occurred in relation to him/her, it is for the Respondent to prove the contrary”.

1.9           The Respondent relies on Southern Health Board v Mitchell DEE 1/2001, [2001] 12 E.L.R. 201, Hallinan v Moy Valley DEC-S2008-025, Cork City Council v McCarthy EDA0821, Valpeters v Melbury Developments Limited [2010] ELR and 2 Named Complainants v A Catering Company [2018] 29 E.L.R. 105.

1.10        It is only if a complainant establishes facts from which it can be presumed that there has been discrimination that the onus shifts to a respondent to prove that there was no discrimination. In the instant case, the Complainant has failed to establish any facts from which a presumption of discrimination on the basis of age, or any ground for that matter, arises.

1.11        The Valpeters decision expressly provides that the facts required to give rise to a presumption of discrimination “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”. The Complainant has failed to adduce credible evidence of any relationship or link between the age ground and any alleged less favourable treatment. The Complainant has also failed to assert his membership of the protected group.

1.12         

The Respondent submits that the Complainant’s allegation of discrimination is unsupported by any evidence. The Complainant’s complaint should therefore be dismissed. 

Background to the incident of 12th August 2019

1.13        At 6.10am on 12 August, 2019, the Complainant sent an email to the Senior Vice President and Deputy General Counsel of the Respondent company stating that while he was working in a designated quiet area on the Respondent’s premises that day, another employee, Mr. R entered the quiet area while talking on his phone. The Complainant stated that he approached Mr. R and told him that this was not an area to have a phone call and asked that he be quiet. When Mr. R did not get off his phone or reduce the noise level, the Complainant asked Mr. R if he was “able to read” and pointed out the rules to him. The Complainant then stated that when the phone call ended, he was approached by Mr. R and they exchanged words. He also stated that both parties grabbed the other’s name badge to see who they were. The Complainant alleged that Mr. R stated that “We will solve it outside”. The Complainant ended the email by stating that he was “willing to accept” an apology from Mr. R but that if there was a repeat of the situation he would “escalate it immediately”. A copy of this email correspondence was exhibited at the adjudication hearing.

1.14         

Upon receiving the Complainant’s email, the Senior VP (who was Mr. R’s manager at the time) responded by email at 11.23am on the same morning indicating that she would look into the matter immediately. The Senior VP then discussed the situation with the Head of Global Security, Fusion Center (the Complainant’s manager), the Country HR Manager, Human Resources and Mr. R. On foot of the Senior VP’s discussions with these people, she ultimately decided that this was a one-off incident, and that it did not require any further formal sanction or investigation. As Mr R’s manager, and SVP, she considered that the informal process would be sufficient to deal with this one-off incident. Having addressed the Complainant’s concerns with Mr. R, the Senior VP e-mailed the Complainant on 15th August 2019. She stated that she had “addressed the concerns” with Mr. R and that Mr. R now “understands the quiet area restrictions and will respect those requirements going forward”. A copy of this email correspondence was exhibited at the adjudication hearing. 

Despite the Respondent resolving the issue as promptly as possible and addressing the

Complainant’s concerns with Mr. R directly, the Complainant emailed the Senior VP on

16th August, 2019 and stated that she did not address the issue of Mr. R’s “aggressive, bullying behaviour”. The Complainant stated that he had opened a case in the Respondent’s internal issue reporting platform, Open Line. A copy of this email correspondence was exhibited at the adjudication hearing.It is noted and as appears from correspondence, the Complainant did not initially ask for the matter to be formally investigated and stated that he would be happy with an apology from Mr. R. 

The Respondent has a number of policies in place which detail the processes that are to be followed in addressing any complaints and concerns of employees. These policies are available to employees on the internal intranet home page and include the Problem-Solving Policy, its Anti-Bullying and Harassment Policy and its Global Open-Door Policy. Copies of these policies were exhibited at the adjudication hearing. The Global Open-Door Policy has been updated since this matter arose, but was live in September 2019 and includes a grievance procedure, which provides as follows:

“If you have a question or wish to discuss a possible violation, you should first discuss it with those in your management chain. If for any reason you are not comfortable discussing issues with those in your management chain or human resources, or if no action is taken when you raise a concern, please contact the HPE Open Line or the Ethics and Compliance Office”

When the Complainant reported the issue through the Open Line, a Consultant (Open Line Consultant, People, Relations and Compliance) was appointed to investigate the matter. The Consultant contacted the Complainant and asked him for his statement of events. The Complainant sent this statement by email on 20th August 2019. A copy of this correspondence was exhibited at the hearing.

Following an investigation carried out by the Consultant, he sent an email to the Complainant on 18th December 2019, which stated that the matter had been closed and that although “the outcome is confidential”, the Respondent had taken “appropriate actions to address the issue”. The Respondent does not share specific details of the outcome of grievance investigations with the other party in order to protect all parties’ confidentiality and data privacy rights.  Nothing further occurred between Mr. R and the Complainant to suggest that HPE had not fulfilled its duties towards the Complainant.

Although the Respondent dealt with this incident through two separate channels, it appears that the Complainant was unhappy not to receive specific details about the outcome and sent an email to the Consultant on 19th December 2019 stating that a “confidential outcome is not acceptable” and that he would seek help outside the Respondent.

The Complainant did not respond to the Consultant until 12th May 2020 when he then sent an email to the Respondent’s corporate compliance department to complain about the investigation and that he did not receive specific details on the outcome. Following an investigation by the corporate compliance department it was decided that no further action was required. 

The Complainant resigned from his position and his employment with the Respondent ended on 26th June 2020. 

Conclusion

It is clear from the above that the Complainant has not been discriminated against on the grounds of his age, or any other ground for that matter. 

The Complainant has failed to identify a relevant comparator as required by section 6(1) of the EEA. Further, the Complainant has failed to adduce any evidence of a relationship or link between his age, the incident on 12th August 2019 and/or the subsequent investigations. The Respondent carried out a comprehensive investigation and addressed the issues with the relevant parties. The Respondent is at a loss as to why the Complainant alleges that he suffered discrimination. The Respondent denies in the strongest terms that any discrimination has occurred. 

The Complainant was a valued member of the Respondent’s staff. The incident on 12th August 2019 was a once-off occurrence and was initially dealt with by the Respondent on an informal basis, and then thoroughly investigated by the Respondent to ensure that it would not happen again. 

In circumstances where the Complainant has not raised a prima facie case of discrimination, the Respondent submits that the Complainant’s case ought to be dismissed. 

Evidence of the Country HR Manager

The HR Manager said that he was contacted by the Senior VP in relation to the complaint she had received. The Senior VP outlined the proposed informal approach including speaking with Mr. R, providing feedback and communicating with the Complainant. The HR Manager was happy with that approach. He noted that it is the culture of the organisation to try to resolve issues informally, the formal process is usually not introduced until informal process is exhausted. The HR Manager said that the Open Line was introduced as a progressive method to enable employees to resolve various issues in a confidential manner without the involvement of local management and HR. If the matter cannot be resolved by an Open Line consultant, local management can then be involved. The HR Manager also outlined the Global Open Door Policy within the organisation, which encourages employees to raise matters of concern with anyone in the organisation, at any level, not limited to local management.  He noted that the Policy provides that if an employee has a question or wishes to discuss a possible violation, they should first discuss the matter with those in the employee’s management chain. If the employee is not comfortable discussing issues with those in the management chain or HR or if no action is taken, the employee can contact the Open Line or the Ethics and Compliance Office. The HR Manager said that the Open Line and the Ethics and Compliance Office engage impartial consultants.

In cross-examination, the Complainant asked the HR Manager if he considered asking somebody for a statement in relation to the incident. The HR Manager replied that he did not think it was necessary. The Complainant questioned why the interviews with witnesses were not conducted as per the procedure. In reply, it was noted that factually there was no dispute between the parties.

Evidence of the Senior VP

The Senior VP said that after receiving the Complainant’s email, she wrote back to him informing him that she would look into the matter. Mr. R. reported to her. She spoke with the Country HR Manager and another manager in the chain. She noted that she was based in California, USA and she has never met the Complainant and did not know his age. She said that she spoke to Mr. R who thought the Complainant was in the wrong. She provided Mr. R with counselling, they discussed policies and procedures and it was agreed that this kind of incident won’t happen again. She went back to the HR Manager. It seemed to be a once-off incident between employees which can happen given the number of employees. She said that while some matters are obviously dealt with formally, the goal is to resolve interpersonal issues between employees  informally. She said that the matter didn’t seem like one that required a formal investigation, but the Complainant could escalate it if he was not happy with the outcome. The Senior VP said that on 15th August 2019 she sent an email to the Complainant informing him that the matter has been dealt with. On 16th August 2019 the Complainant reverted that he was not happy with the outcome.

The Senior VP confirmed that she was not contacted by the Open Line Consultant and doesn’t recall any involvement after 16th August 2019. She said that she didn’t think that her actions could constitute discrimination.

In cross-examination, the Senior VP confirmed that Mr. R said that the Complainant was aggressive.

Evidence of the Open Line Consultant

The Consultant said that he is based in Texas, USA and he has never met the Complainant and was not aware of his age. He said that it was determined that the Senior VP would coach Mr. R. He said that the reason it was deemed that no witness interviews were required was because it was clear that this incident had happened. He noted that typically the Open Line addresses the issue with an employee who is the subject of a complaint. The outcome e.g. disciplinary action, coaching, counselling, etc. is not discussed with the employee who raised the complaint. Information is passed when an appropriate action is taken but no specifics are given. As of today, the same approach is taken. He said that he believes that the Ethics and Compliance Office replied to the Complainant that the matter had been dealt with appropriately.

The Consultant said that he did not think that his actions could constitute discrimination.

In cross-examination, the Complainant asked the Consultant if he recalled what timeframe he gave the Complainant to deal with the matter. The Consultant said that he did not recall. The Complainant asked if he remembered saying that it would take 5 weeks. The Consultant said that he did not recall. The Complainant asked if he remembered that he was given the name of a person to be interviewed. The Consultant replied that he did not. The Complainant asked if the Consultant received any guidelines from the Irish office. The Consultant replied that he did not. The Complainant asked if the Consultant was aware that there is a requirement in Irish law that at the end of the process the employer must inform the employee who had made a complaint of the outcome, whether the complaint was justified or not. The Consultant answered that he was not aware of that specific provision. 

The relevant law

Employment Equality Acts 1998-2015

“6. Discrimination for the purposes of this Act

(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,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned,

…

(2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are—

…

(f) that they are of different ages, but subject to subsection (3) (in this Act referred to as “the age ground”),”

Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination.  It requires the Complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination in relation to him.  If he succeeds in doing so, then, and only then, is it for the Respondent to prove the contrary.  The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of “sufficient significance” before a prima facie case is established and the burden of proof shifts to the Respondent.  In deciding on this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the Complainant.  It is only where such a prima facie case has been established that the burden of proving there was no infringement of the principle of equal treatment passes to the Respondent.

In the case of Melbury Developments v Arturs Valpetters EDA0917 the Labour Court, whilst examining the circumstances in which the probative burden of proof operates stated that a 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 it be of sufficient significance to raise a presumption of discrimination. However it 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 …… the burden of establishing the primary facts lay fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule”. 

As was noted in Margetts v Graham Anthony Ltd. EDA038;

“The mere fact that the complainant falls within one of the discriminatory grounds laid down under the Act is not sufficient in itself to establish a claim of discrimination. The complainant must adduce other facts from which it may be inferred on the balance of probabilities that an act of discrimination has occurred.”

In the within case, the Complainant did not provide any details in relation to a comparator to demonstrate that he was treated less favourably than another person is, has been or would be treated in a comparable situation on the ground of his age. The Complainant was unsure as to what was the reason for his treatment, whether it was his age, his country of origin or another reason. He noted that he has submitted his claim alleging discrimination by reason of his age as he was not able to submit a claim “I was discriminated but I don’t know why”.

While the Complainant clearly is not satisfied with the outcome of the grievance process, beyond expressing his belief that he was treated differently because of his age, the Complainant did not put forward any argument to suggest that his age was a factor in his treatment. I, therefore, cannot accept that there is an inference of discrimination and that the Complainant has met the requirement to establish a prima facie case of discrimination.

I find that the Complainant has not established a prima facie case of discrimination on the age ground. Accordingly, I declare this complaint to be not well founded.

Discrimination -age