Complainant

Respondent

Parties

Xiaodong  Shi

Pfizer Shared Services Unlimited Company

Complainant

Respondent

Representatives

  No Representative

Niamh McGowan BL instructed by  A&L Goodbody 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-00033865-001

18/01/2020

Attendees

Complainant: Xiadong Shi

Respondent: Michael Doyle Solicitor Darren Russel, Ciaran Carragher, Louise Mulvihill, Paul Kyne

This hearing was a public hearing and evidence was given by Affirmation by the Complainant and Darren Russell.

 The Complainant, an agency worker, worked for the Respondent as an Accountant from the 5th September 2018 until the 4th August 2019 when his employment ended.  He is claiming he was discriminated against by the Respondent on the race ground and victimised pursuant to S. 6(2)(h), S.8(1), S. 14A and to S.74 of the Employment Equality Acts, 1998 to 2011.

The Respondent submitted that the name of the employer on the complaint form is not the correct legal entity. The Complainant is an agency worker employed by an Employment Agency and he was not an employee of the Respondent.

In making my decision I took into consideration the oral evidence submissions both oral and written provided by the Complainant and the Respondent.

Complainant (Affirmation)

The Complainant is a Chinese national who commenced working with the Respondent as a GL Vat Accountant on 5th September 2018 after being recruited through a recruitment agency Walker Andersen on an 11-month contact.

The Complainant was based in the Respondent’s offices in Ringsend, and there were seven members of staff working in the office including Senior Manager, Team Manager, and Senior staff member Ms.ES.

The Complainant said that from the commencement of his employment with the Respondent, he encountered serious difficulties and bullying from his colleague Ms.ES and the Manager who singled him out for criticism and made insulting race-related comments and derogatory remarks to him in the workplace and in the presence of his colleagues. 

 The Complainant said that Ms. ES accused him of doing nothing all day in front of other colleagues and then queried him about what he had been doing all day. Part of GL VAT files were prepared by the Indian team, and Ms. ES complained on a few occasions to him that Indian team were lazy, slow to respond and produced low qualify files.  In or around 18th December 2018, there was a query email from Chinese team about applying the tax code. Ms. Es worked as a senior staff in the team, and he checked with her how to reply to the query. The Complainant replied to the Chinese team, but the answer Ms. ES gave him was not correct, so the Chinese team emailed the Complainant again and he had to ask Ms. ES again. He said that she then got very impatient and aggressive, she commented to the Complainant that “your Asian culture is similar, but you Chinese are even worse”, implying that the Chinese team are worse than the Indian team.

 The Complainant said that as a senior member of the team Ms. ES provided training to the new staff including himself. He said that he checked queries with her about work, on a few occasions, Ms. ES commented to him that she had had shown him this two month ago asking him why he had not remembered how to do it commenting that he had a bad memory. He said that she kept bullying him with unfair criticism and on one occasion she asked him to complete the Germany entity year end but nobody on the team had shown him how to do.  Staff who were leaving the team asked Ms. ES to show how to do the file, because nobody had the opportunity to show Complainant how to do it and he was not able to do it. Despite this Ms. ES gave him the German file to do making a comment about him passing his probation.  He believes she was setting him up to fail and he was bullied because of his Chinese background.

The Complainant said that in or around the March 2019 the Team Manager set up a new work schedule, swapped two clients between him and Ms. ES, but Ms. ES threw both files back on his desk and insisted that he would be doing both entities work even though her name was on one of entities on the list. He believes that by forcing him to do her job he was being harassed by her. 

He said felt it was very unfair and he talked to the Manager who told him that Ms. ES had reported to him that the Complainant, who took a 20 minute tea break in the afternoon, should have time to finish the extra work. The Complainant stated the Ms. ES was bullying him by forcing him to do her job and the Manager was backing her. As a Team Manager he should have been fully aware it was very unfair. The Complainant said he always went on tea break with two white European colleagues in the team, and there was no complaint about tea breaks to these two colleagues. The Complainant said that the Team Manager allowed an Irish work colleague to play snooker some days in the afternoon.  The Complainant also said that Ms. ES was allowed to study for her final CIMA professional accounting examinations during working hours and at the busiest month end closing period. 

The Complainant said he was given a very slow second hand laptop to work with and he asked the Manager at least three occasions to replace his laptop as he was not able to save his work leading to wasting time having to re-do it, but his request was turned down.  The complainant said an Irish work colleague had the same problem with his laptop, but he got a newer and faster laptop approved and replaced straight away.

The Complainant said that the Team Manager treated him badly throughout the employment period. He said that on a daily basis he was required to give the reconciliation file to the Team Manager and when he went to the desk to hand over the file the Manager did not acknowledge after he spoke to him and continued to stare at his computer monitor and made no eye contact with him. Other white European colleagues had to follow the same procedures to hand over the file, but the Team Manager would make eye contact and was chatty to them. When he returned from holidays in May the Team Manager did not ask him about his holidays but when an Irish employee returned from holidays the Team Manager chatted to him about his holidays. He said that the Manager showed no respect to him at all. He said when he was handing over the files when his employment ended the Team Manager made no eye contact with him during the meeting and continued to chat with the Senior Manager.

The Complainant said that he was given a task to finish the year end audit files for UK unities, there was one journal was required to be corrected. He said that he corrected the file and submitted by the due date. The Team Manager after learning that the file had been corrected by him and complimented him on completing the task. However, the Manager then gave him a negative review to the Recruitment Agency and stated that the complainant had missed the deadline for UK unities.

The Complainant said that he had the usual monthly meeting with the Team Manager in May 2022. He pointed out that the work he was doing on the French and German files was very time consuming and he asked if he could bring work home, but the Team Manager did not respond to him. He said that he was given a bad review which the Manager sent to the Recruitment Agency for review with his employer.

 The Complainant said that on 22nd May 2019 the Team Manager sent him to the Employment Agency to have the work review. He said that the whole review sent by the Team Manager was negative.  The review stated that the Complainant worked on 70% of number of entities his other colleagues worked on. The Complainant said the workload was planned by the Manager without any discussion or agreement with him and it was not his fault if the workload was less than other colleagues, but he does not accept that he had a lesser workload.

 The Complainant said the review was based on numbers of the entities rather than the difficulties of the work of he was dealing with.  He said it was very unfair as the Manager knew that he was given the two most difficult and complicated country entities to work on. The review also stated that he had missed an audit deadline and took long tea breaks. He said that his reputation as a qualified accountant was ruined with the agency. He pointed out to the agency that the review was unfair and discriminatory.

The Complainant was informed by the Agency by email that his contract was not going to be renewed while he was on holiday in China.  He said that when he returned to work after his holidays, he did not tell anyone about his contract situation, but one team member asked that if the complainant contract would not be renewed and if he was a fully quailed accountant.  He believes that the Team Manager discussed this and his qualifications with other team members indicating that the Complainant was not qualified for the job.  He said that the Team Manager also refused to sign off the time sheets for the last day he worked even after he sent three emails to remind him. He also said that there was no announcement that he was leaving, and he was given no farewell party like other people leaving the team. He said that a Nigerian woman had a farewell party. He said that the team manager was very difficult and discriminated against him on the last day of his employment. 

The Complainant accepted in cross examination that the time sheets were signed and that he got paid for the last day he worked. He also accepted that he did not announce when he was leaving, and that no Agency worker had left the team while he was there.  He accepted he did not complain about the comment that Ms. ES made about Chinese work colleagues. He said that he only complained to the Agency at the review meeting. It was put to the complainant that the issue of the tea breaks was raised in circumstances where he was unable to meet deadlines whereas other team members met their deadlines and could take longer breaks. The complainant denied that he was unable to meet deadlines or that he had only 70% of the workload that other team members had.

The Complainant accepted he missed an audit deadline. He said that it was 98% complete at the deadline but he missed sending 2 files. In relation to his complaint about lack of eye contact or personal interaction by the team Manager, the Complainant accepted that there was a tray on the Team Manager’s desk for the delivery of the daily reports and that it was not necessary for him to address the Complainant and he was unable to say how it was discriminatory treatment on the race ground.  In relation to the complaint about getting a new laptop, it was put to the Complainant that the Irish employee followed procedures and raised a ticket for approval by the Manager in accordance with procedures provided to him at the induction and that he failed to raise a ticket.  The complainant accepted he did not raise a ticket and said that he did not know about the procedures.  

Submission on Preliminary Issues: Correct Name of Respondent and Agency Worker

It was submitted that the Complainant has instituted a statutory claim against Pfizer Global Financial Solutions which is not a legal entity, and neither is it a registered business name of Pfizer. It was as submitted that in his written submissions to the WRC, the Complainant refers to his statutory claim being against "Pfizer". The shared services company to which the Complainant was assigned is the more appropriate legal entity to be named in the proceedings.  Pfizer Shared Services Unlimited Company (hereinafter the “Respondent”) is a body corporate having its registered offices in The Watermarque Building, Ringsend, Dublin 4.

It was submitted that the Complainant is an agency worker who at all material times was an employee of Stirling Andersen Ireland Pty Limited trading as Walker Andersen who carries on the business of an employment agency and was engaged by CPL Resources plc, to source certain agency personnel for the Respondent. The Complainant, while employed by Walker Andersen, was assigned to the Respondent via CPL, as master supplier of agency staff to the Respondent. The Complainant was never employed by the Respondent.

It was submitted that from 5th September 2018 to 2nd August 2019, CPL placed the Complainant with the Respondent as an agency worker, where he worked on the GL VAT team in the finance as an accountant within the Corporate Reporting department. The Complainant worked for the Respondent for his 11 month assignment and only ceased working for the Respondent on the expiry of his assignment in August 2019.

It was submitted that the Complainant was recruited by and had a contract of employment with Walker Andersen and they paid his wages agreed his holidays and his probation/performance reviews were carried out by them.  On 2nd August 2019 the Complainant’s employment contract was terminated by the Employment Agency.

Relevant Law

Discrimination by employers is expressly prohibited by section 8 of the Employment Equality Act. This provides that:

(1) In relation to –

a. access to employment,

b. conditions of employment,

c. training or experience for or in relation to employment,

d. promotion or re-grading, or

e. classification of posts,

an employer shall not discriminate against an employee or prospective employee and a provider of agency work shall not discriminate against an agency worker.

 For the purposes of this Act, neither an employer nor a provider of agency work shall be taken to discriminate against an agency worker unless (on one of the discriminatory grounds) that agency worker is treated less favourably than another agency worker, is, has been or would be treated.

(3) In subsections (4) to (8) references to an employee include references to an agency worker and, in relation to such a worker, references to the employer include references to the provider of agency work.”

It was submitted that Section 2 of the Employment Equality Act incorporates the interpretation section and the definitions set out therein are fundamental to the Respondent’s preliminary objections to the Complainant’s claim, which are that it is the incorrect respondent as it is not, and never has been, the Complainant’s employer and, further, the respondent named in the Complainant's WRC complaint form, Pfizer Global Financial Solutions, cannot be a considered a "provider of agency work" as defined in the Employment Equality Act.

Section 2(1) is the interpretation section and provides the meanings of the following terms:

“Employee”, subject to subsection (3) means a person who has entered into or works under (or, where the employment has ceased, entered into or worked under) a contract of employment and, where the context admits, includes a member or former member of a regulatory body, but, so far as regards access to employment, does not include a person employed in another person’s home for the provision of personal services for persons residing in that home where the services affect the private or family life of those persons;

“Employer”, subject to subsection (3), means, in relation to an employee, the person with whom the employee has entered into or for whom the employee works under (or where the employment has ceased, entered into or worked under) a contract of employment;

“employment agency” (when not defined by reference to the Employment Agency Act 1971) means a person who, whether for profit or otherwise, provides services related to the finding of employment for prospective employees or the supplying of employees to employers;

“provider of agency work” shall be construed in accordance with subsection (5);

 Subsection (3) of section 2 provides that:

“For the purposes of this Act_

(a) …

(b) …

(c) in relation to an agency worker, the person who is liable for the pay of the agency worker shall be deemed to be the employer.”

Subsection (5) of section 2 provides that:

“…A person who, under a contract with an employment agency, within the meaning of the Employment Agency, 1971, obtains the services of one or more agency workers but is not their employer for the purposes of this Act is in this Act referred to, in relation to the agency workers, as the "provider of agency work"

It was submitted the Complainant was an agency worker who entered into and worked under a contract of employment with the Employment Agency. The Agency paid the Complainant when it provided him with agency work and therefore as the person liable for the pay of the Complainant, was Complainant’s employer at the material time.

Furthermore, given Pfizer Global Financial Solutions is not a limited entity or a registered business name, it has no legal standing and could not have entered into a contract with the Employment Agency to obtain the services of one or more agency workers. As such, Pfizer Global Financial Solutions, the respondent the Complainant named in his WRC complaint form cannot constitute a "provider of agency work".

It was submitted that it would be inappropriate for the Adjudicator to exercise his/her discretion and substitute the incorrectly named respondent for the correct respondent in circumstances where the statute of limitation has expired.  In the Labour Court decision in Sylvia Wach v Travelodge Management Limited EDA1511, it is acknowledged that, if the Complainant wished to bring a statutory claim at this juncture against the Respondent, he could do so if he could demonstrate "reasonable cause" for the delay in bringing this claim against the correct entity. It is submitted however that no such reasonable cause can be shown in the instant case.

In its recent decision in Brothers of Charity Services Roscommon v Niamh Lynch EDA1827, the

Labour Court held that:

"where a complainant relies on difficulties in determining the correct name of the respondent as justification for this delay, they must establish a link between these difficulties and the delay; and the fact that the original complaint is brought close to the expiry of the statute of limitations operates against a complainant"

It was submitted that the Complainant cannot credibly assert there were any difficulties on his part in determining the correct respondent in this case. In this regard, the Complainant must prove that there is any link between any alleged difficulty encountered by him in identifying the correct respondent and the delay in seeking to substitute the named respondent for the correct respondent.

It was submitted that the Complainant's claim should be dismissed.

Submission on the Substantive Case.

The Complainant alleges that he has been subjected to specific treatment which was less favourable to him than someone with a different race. The Complainant alleges that his manager, discriminated against him in a number of ways including inter alia that he made comments about the Complainant’s long tea breaks but never had any issue when the Complainant’s Irish co-worker, who he alleges took breaks to plays snooker with colleagues, and that Mr Russell did not interact with him on a daily basis but actively interacted with his white European colleagues.

He was intimidated by allegedly being forced to undertake work, by Ms ES and the Team Manager, for which he was not trained which he claimed made him feel he was set up for failure.

The Complainant alleges that he was shouted at, berated and embarrassed for completing work and for issues which had nothing to do with him and his work or for issues of which he had no knowledge about or training.

The Complainant alleges he got an unfair review and was not judged on the difficulty of his assignments but on the number of assignments completed where he claims he undertook more difficult assignments which took longer and required more effort to complete.

The Complainant alleged favouritism where he asserts that he requested a new computer on several occasions because the computer he was using was old and slow and caused him issues when saving work but that a new computer was not provided to him, while Mr Breslin, an Irish co-worker, was given a new computer when he complained of the same issues

The Complainant alleged that he was bullied by Ms ES in that she tried to pass her work onto him, called him lazy, tried to make him look bad for no reason other than personal gain and made him do extra work under the threat of ensuring he would fail his probation if he did not do this work. The Complainant alleges that he complained about it to the Manager who, he says, disregarded his concerns instead of dealing with his complaint.

The Respondent’s Defence to the Complainant’ Substantive Case

 Allegation of Racial harassment/discrimination

The specific allegations made by the Complainant are that he suffered racial harassment when derogatory comments were allegedly made.  Ms ES allegedly said to him that “Chinese are the worst”.

It was submitted that the Complainant worked in an open plan office and all of the personnel in the Finance Department worked in close proximity with each other. In the VAT section the Complainant sat at the end of a row of three workstations with further work stations directly behind him and in front of him. There were low-level dividers between the Complainant and the person in front of him but no barrier whatsoever between him and the person behind him. It was submitted it was a busy work environment and conversations were clear between colleagues, including that raised voices could be heard from one end of the office to the

It was submitted that the Respondent’s evidence is that if anyone spoke the words “the Chinese are the worst” as alleged by the Complainant that it would not be possible to do so without said utterance being heard by other colleagues. The Complainant alleges that this incident occurred on 18th December 2018 and those in attendance in the workplace on the date in question contradicts the Complainant’s account. The Complainant alleges that these race-related and derogatory comments were made in the presence of his colleagues, but he does not identify anyone who can confirm his account. The Respondent submits this is because the allegations are false, and that at no time prior to lodging his statutory complaint did the Complainant ever approach a member of the Respondents management to complain about the derogatory remarks made by Ms ES about the Complainant and/or Chinese nationals.

The Respondent has policies which has zero tolerance policy for any sort of discriminatory conduct which has become integrated throughout the Respondent organisation such that if such words were uttered immediate action would have been taken to deal with the offender.

It is also denied that Ms ES made any derogatory comments about the Indian team or call them lazy, link their performance to their ethnicity or nationality and/or compare them to any other group, Asian or Chinese.

the Complainant’s allegation that he was forced to undertake work for which he was not trained, and which made him feel as though he was set up for failure is denied . He relies on a specific example of work he was required to do for the German Market, he does not demonstrate how it was racial discrimination. Contrary to the Complainant’s assertion that he was not shown how to complete the year end procedure for the German entities it can be seen from the documents submitted in evidence that the Complainant was provided with the link to the work instructions for the German year end procedure on 7th September 2018, a few weeks after he had commenced his assignment. The knowledge transfer necessary for the Complainant to undertake the work was completed by one of the Complainant’s colleagues who had experience of the process but who then transitioned to another team. Support and training were continuously provided, for a number of weeks, to the Complainant to ensure he was confident to complete the German year-end work properly. The Complainant never informed Ms ES that he had any concerns about completing the task

Ms ES had monthly team meetings between October and December 2018 where she encouraged her team to voice any concerns they had, regarding workload or difficulties with any tasks assigned to them, and no issues were raised by the Complainant in those meetings about the German year-end procedure. It is denied that any comment was made about the Complainant passing his probation.

It is submitted that the Complainant has not linked this complaint to a claim of discrimination on the grounds of race and to succeed the Complainant must prove he was treated less favourably than another agency worker.

It is denied that the Complainant was bullied by Ms ES or that she accused the Complainant of “doing nothing all day” and neither did she ever call the Complainant “lazy”. Ms. ES’s role, as seconded operational team lead for the GL VAT accounting team was to make sure all deadlines were met, and all tasks completed by the team. In carrying out her role, it was her practice to ask team members how they were getting on, what was left for them to do in order to satisfy herself that deadlines would be met. Where anyone, including the Complainant, was struggling she offered help or redistributed workload, and in some cases completed the work herself to ensure deadlines were met.

The issue relating to the tax code, where the Complainant alleged derogatory race-related comments were made (which is denied), Ms Szabo gave the Complainant every support possible to help him solve the issue. While Ms Szabo is not a VAT specialist, she still tried to assist the Complainant to the best of her ability and knowledge. Ms Szabo was not on that occasion, or ever, aggressive or impatient with the Complainant (or other members of staff), rather she always tried to find a solution and did not give up until the issue was resolved. Ms Szabo’s evidence will be that she never said that the Complainant did not have a good memory.

The Complainant asserts that he was discriminated against, compared to an Irish colleague, by not being provided with a replacement laptop when his colleague was. The Complainant said that he had asked, more than three times, for a replacement as his laptop was old and slow and had issues saving the work. He said that this demonstrated blatant favouritism towards his Irish colleague.

Distribution of new or replacement laptops is not at the discretion of senior accountants or managers on the Respondent’s site. All IT requests are directed to the internal IT provider, Business Technology. This was notified to the Complainant as part of his new starter pack which was sent to him by the Team Manager on 5th September 2018.  The Team Manager recalls both the other work colleague and the Complainant raising issues with him regarding the performance of their laptops. Both had similar issues with slow performances and difficulties saving more complex spreadsheets.

It was submitted that the Complainant was provided with a solution to resolve the issue and told that if the problem was not resolved he was advised that a ticket (i.e. a formal written request) should be raised with BT who would either refresh the laptop and return it or authorise a replacement laptop.

The Complainant never raised a ticket requesting a new or replacement laptop. The other employee followed the appropriate protocol, and the Complainant did not which explains why he obtained a replacement laptop, and the Complainant did not.

 The Complainant allegation that he was subject to an unfair work review by Mr. Russell is incorrect as the Complainant is an agency worker was reviewed by a representative from his employer. Mr Russell provided feedback on the Complainant’s performance by email to the Recruitment Agency on 20th March 2019 and further clarification on 10th April 2019. The only information relayed to the respondent after the Complainant underwent his performance review with the Employment Agency on 21st May 2019 was that it had been carried out and the issues of concern brought to the Complainant’s attention. The Respondent received no indication from the Complainant that he was unhappy with anything discussed in his performance review with his employer.

The Complainant alleged it was discriminatory treatment for his manager to complain about his tea breaks which he took with two employees of a different nationality and who did not receive a complaint. It was submitted that he took twenty minutes for a break in the afternoon and the manager raised it with him because he had informed the manager, outside of the team meeting, that he was overwhelmed with work. This had led to a reduction in the Complainant’s workload to approximately 70% of what he would have expected an agency worker of the Complainant’s qualifications to be able to achieve. There was no issue with designated breaks being taken but the Respondent considers it inconsistent that someone who claims to be overwhelmed with work would be able to take additional breaks outside of those allocated.  All of the Complainant’s colleagues were operating at full capacity and meeting their performance targets. Had the Complainant been in that position, the issue would not be raised with him.

The Complainant asserts that his treatment was less favourable than Ms. ES’s treatment (who as an employee of the Respondent and not an agency worker is not an appropriate comparator). He alleges that Ms. ES studying for her CIMA exams in or around the time the Manager made comments to the Complainant about taking additional time off other than on designated breaks. Notwithstanding that Ms ES is not an appropriate comparator as she is not an agency worker, the Complainant’s assertions in respect of her being allowed study time during work are not true.

The Complainant also alleges that his manager treated him badly compared to his white European colleagues in that the manager did not acknowledge him when he gave him a reconciliation file. He alleges the Manager failed to made eye contact with him while he made eye contact and was chatty to his white European colleagues when they handed over their files.

 The Complainant also alleges that the manager treated him “like dirt just based on his skin colour” because he responded to queries from the Complainant with his white earphones in his ear which the Complainant considered disrespectful. The Complainant also alleges that on his second last day in the office the Manager treated him as invisible during a meeting. It was submitted that these are gross misrepresentations on the part of the Complainant and denied by the Respondent.

The Manager evidence is that he treated the Complainant no different to any other colleagues in the VAT team and that he acted in a professional manner towards him as he does with everyone else. Owing to the vast number of reconciliations the manager is required to review and approve he requested all colleagues to place completed VAT declaration sign-off sheets in a grey tray situated on his desk. This allows all colleagues to leave the relevant documents in the appropriate place for the managers attention whether he is at his desk or away from it and also when he is on a conference call whilst wearing his headphones.  

Witness

Darren Russel (Affirmation)

He said that he is a senior Accountant in GL VAT team and the Team Manager.  He said that there was no complaint from the Complainant about any comments made by Ms. ES. The Complainant did not make any complaint about discriminatory treatment in relation to his nationality.  He said that there are about 40 different nationalities on site, and he had never got a complaint of discrimination.

 He said that Ms ES did most of the Complainant’s training which was desk based. He said that the complainant needed more training and Ms. ES went above and beyond what was required and produced a training document for the Complainant. He said that Ms. ES was not an aggressive person and there was never any difficulty with her giving assistance to the Complainant. He said that there was a 15 minute tea break and a 30 minute lunch break and he had no issue with staff taking their breaks and the breaks are not timed. The comment he made to the Complainant in relation to the length of his tea break was in the context of his workload. The Complainant had complained that his workload was excessive as he was doing the more complex German and French markets and he adjusted the workload and removed some countries and swapped some work for less complex markets. He told the Complainant he was not the only one doing complex work. He said that the Complainant should have been able to carry out the work as he was technically qualified to do it. He believed that the workload was fairly split between the team and that the Complainant did not have an unfair share of the complex cases and his nationality was not part of any rationale in assigning him the work.

The complainant missed deadlines and on the 21st of March he missed a deadline of 5pm the day before to submit a completed file.  There were a number of journals not submitted on time.

The Team Manager said that he noticed that the Complainant was taking excessive tea breaks and he raised it with him. In the context of his complaint about his workload and time management issues. He said that some people took longer tea breaks or played pool, but they had no issue with their workload and completed their work and there was no need to raise any matter with them.

He said that he never shouted at the complainant or berated him in anyway.  

The Team Manager said that that following a meeting with the Complainant he submitted a report to the Employment Agency for a performance review which the Employment Agency which was held on the 22nd May 2019. He outlined a number of issues he had with the Complainant’s Performance including the fact that his workload was only 70% of other members of the team, missed deadlines and the issue with tea breaks. He was informed that the performance review was completed, and the issues of concern were raised with the Complainant. The Employment Agency did not renew the Complainant’s contract which expired in August.

The Team Manager said that he did not refuse to get the Complainant a replacement laptop. There is a procedure for getting a replacement laptop and the employee seeking a new laptop have to send a ticket to IT and it is a matter for IT to decide on whether a laptop is faulty and needs a replacement. He said that he did not treat the complainant differently to the other employee who requested a replacement laptop and provided both the same information and the procedure for getting a replacement.

Regarding the allegation that he did not talk to the Complainant, he said that there is a container on his desk for the team member work and the same instruction was given to everyone as regards their work.  He said there are a number of reasons he may not be able to talk to work colleagues who come to his desk. He wears headphones would have been doing other work or may be on a WebEx call. He denied that he ignored the Complainant or treated him any different to the other work colleagues. 

Regarding the Complainant’s complaint that he got no acknowledgement or appreciation email on the day he was leaving, the Team Manager said that there is no company policy about what happens when people leave.  He said it is up to the person leaving to make send out an email to say they are leaving and then any events that are organised is at the managers discretion.  He said that the Complainant did not send out an email about leaving and did not ask that an announcement should be made about his departure. 

With regard to the complaint about signing off on the Complainant’s timesheets on the last day so that he was paid, the Team Manager said that he had moved to a new role and when the Complainant contacted him about signing he agreed to do it. He also denied that he ignored the Complainant at a meeting on his last day.

Legal Submission

Section 6(1) of the Employment Equality Acts provides that: -

“Discrimination shall be taken to occur where a person is treated lessfavourably than another person is, has been or would be treated in acomparable situation on any of the grounds specified in sub-section 2(in this Act referred to as the ‘discriminatory grounds’).’

Section 6(2)(h) provides that: -

‘As between any two persons the discriminatory grounds are that they are of different race, colour, nationality or ethnic or national origins (in this Act referred to as ‘the race ground’).’

 Section 8(2) of the Employment Equality Acts provides that:

(2) For the purposes of this Act, neither an employer nor a provider of agency work shall be taken to discriminate against an agency worker unless (on one of the discriminatory grounds) that agency worker is treated less favourably than another agency worker, is, has been or would be treated.”

Thus, to advance his statutory claim, not only does the Complainant have to show specific less favourable treatment on the grounds of race, but he also has to do so by reference to a comparator who is an agency worker of a different race, colour, nationality, or ethnic or national origins.

Burden of Proof

Section 85A(i) of the Employment Equality Acts deals with the burden of proof and states

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 to the contrary.’

It was submitted that this has the effect of shifting the burden of proof to the Respondent but only once the complainant has proved a prima facie case that the difference in treatment alleged is due to discrimination on one of the discriminatory grounds. In Southern Health Board v.Mitchell Labour Court AEE/99/8, the Labour Court explained that the onus on the complainant in seeking to establish a prima facie case is: -

‘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 the presumption of unlawful discrimination.’

 In Minaguchi v. Wineport Lakeshore Restaurant DEC-E/2002/20, the primary factswere defined by the Equality Officer as follows: -

‘It appears to me that the three key elements which need to be established by a complainant to show that a prima facie case exists are:

(I)  That s/he is covered by the relevant discriminatory ground(s);

(ii) That s/he has been subjected to specific treatments; and

(iii) That this treatment is less favourable than the way someone who is not covered by the relevant discriminatory ground is, has been or would be treated.’

In Southern Health Board v. Mitchell, the Labour Court went on to say that: -

‘It is only if those primary facts are regarded…as being of sufficient significance to raise a presumption of discrimination that the onus shifts to the respondent to prove that there was no infringement of the principle of equal treatment.’

 In Melbury Developments v. Arturs Valpeters 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 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".

The Labour Court added that "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”.

The height of the Complainant’s case is that he makes no more than mere assertions,unsupported by any credible evidence, and as such his claims or allegations cannot beelevated to a factual basis on which an inference of discrimination can be drawn.

It is submitted that the Complainant cannot establish the facts which he alleges give rise to an inference of discrimination. It is submitted that the Complainant falls far short of establishing a prima facie case of discrimination.  In order to comply with Section 8(2) of the Employment Equality Act the Complainant has to identify comparators engaged as agency workers with the Respondent who are of a different race/nationality.

Other than one example in respect of what the Complainant refers to as blatant favouritism, in respect of which he identifies an Irish comparator, the Complainant has not identified any other agency comparators against whom he can show less favourable treatment and has failed to identify any relevant comparators and in respect of the other incidents of alleged discriminatory treatment.

Victimisation

The Complainant also claimed that he was victimised by the Respondent and in his submission, he asserts that “having complained of discriminatory treatment by the Respondent, its servants or agents, [the Complainant] was victimised by the Respondent under s.74(2) of the Employment Equality Acts”. The Complainant made no claim that he made any complaint of discrimination or harassment to the Respondent during the currency of his assignment, and he made no such complaint.

The only other reference to victimisation in the Complainant’s submission, the Complainant submits that “the Respondent and its management victimised the Complainant continued to be subjected to demeaning, insulting and derogatory treatment right up to his last day of the employment [sic]. In addition, the Respondent’s management victimised the Complainant in setting him up for failure and given unfair work review and monitoring him excessively”.

Relevant Legal Provisions

Section 74(2) of the Employment Equality Acts 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 purposes of this Act or any enactment repealed by this Act,

(e) an employee having been a witness of any proceedings under this act or the Equal Status Act 2000 or any such appeal to the enactment,

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

(g) an employee having given notice of intention to take any of the actions mentioned in the preceding paragraphs.

 Section 74(2) sets out the acts which are protected from adverse treatment on the part of the employer and the actions which an employee must have taken/indicated an intention to take, from which the reactionary behaviour of the employer emerged.

“Proceedings” as defined within section 2 of the Employment Equality Acts means ‘proceedings before the person, body or court dealing with the request reference under this Act by or on behalf of a person…’. This means that for an employee to meet the definition of protected act, the proceedings initiated by them must be pursuant to the Employment Equality Acts.

In the Labour Court case of the Department of Defence v Barrett EDA 1017 the key elements of victimisation provided for in section 74(2) of the Employment Equality Acts are as follows:

“the employee had taken action of the type referred to at section 74(2) of the Acts (a protected act), the employee was subjected to adverse treatment by his employer, and the adverse treatment was in reaction to the protected action having been taken by the employee.

The Respondent was not the Complainant’s employer and, as such, section 74 has no application in respect of the Respondent. Section 74 does not provide scope for a finding of victimisation to be made against a "provider of agency work" in respect of adverse treatment allegedly meted out to an agency worker in response to that agency worker having taken a protected act.

Without prejudice to that submission, the Complainant (on his own account), until the institution of the proceedings in being, had not taken any action of the type referred to at section 74(2) nor indicated his intention to do so. The first knowledge the Respondent had that an allegation of harassment or discrimination on the grounds of race had been made and/or a claim for discriminatory treatment had been initiated was when it was provided with a copy of the Complainant’s WRC complaint form in January 2020.

It is axiomatic that the employer must be aware that the employee has taken the protected act or indicated an intention to do so, before any detrimental steps are taken by the employer, in order for a claim of victimisation to succeed. In Ms. B v A Leisure Company DEC-E2010-095 the employee had raised no complaints of discrimination or commenced any proceedings during her employment with the employer such that the claim of victimisation was rejected by the Equality Officer.

The Complainant alleges that he informed the Employment Agency at the performance review carried out in May 2019 of discriminatory treatment, but he made no such allegation to the Respondent.   To succeed in a claim for victimisation the Complainant must show, not only that he suffered adverse treatment at the hands of his employer, but that this treatment was caused by him having undertaken a protected act of a type referred to in section 74. Where he has not undertaken a protected act, he cannot establish victimisation even if adverse treatment is shown, which it is submitted cannot be shown in this case. In all the circumstances it is submitted that the Complainant’s claim for victimisation must fail.

Section 14A Defence

It is submitted that the Complainant has not established a prima facie case against the Respondent who has demonstrated that none of the Complainant’s allegations have any basis in fact and submits that it can rely on the defence set out in Section 14A of the Employment Equality Acts as a complete defence to the proceedings.

Section 14A(2) provides that:

“If harassment or sexual harassment of the victim by a person other than his or her employer would, but for this subsection, be regarded as discrimination by the employer under subsection (1), it is a defence for the employer to prove that the employer took such steps as are reasonably practicable –

(a) In a case where subsection (1)(a) applies (whether or not subsection (1)(b) also applies), to prevent the person from harassing or sexually harassing the victim or any class of persons which includes the victim, and

(b) In a case where subsection (1)(b) applies, to prevent the victim from being treated differently in the workplace or otherwise in the course of the victim’s employment and, if so far as any such treatment has occurred, to reverse its effects.”

The Respondent has in place a Dignity at Work Policy in respect of its employees and those who work in conjunction with those employees, such as the Complainant and other Employment Agency and Recruitment Agency employees. The Respondent operates a zero-tolerance policy in respect of breaches of its policy and has a comprehensive complaints procedure set out in the Dignity at Work Policy. The Respondent ensures that its training, including but not limited to its induction training, sets out its expectations in respect of how employees should treat each other and the mechanism by which complaints are to be raised and investigated. At no time during the Complainant’s assignment at the Respondent’s premises did he ever indicate to the Respondent that he was experiencing any harassment or discriminatory treatment on grounds of race or otherwise or at all. Had the Complainant raised any issues of either harassment or discriminatory treatment same would have been promptly and thoroughly addressed.

 In respect of the claims of harassment and discrimination on race grounds the Respondent asks the Adjudication Officer to find that the Complainant has not made out a prima facie case that he has been discriminated against or harassed by the Respondent on the race ground as alleged or at all.

 In respect of the claim for victimisation the Respondent submits that as it was not the Complainant’s employer, section 74 of the Employment Equality Act has no application to the Respondent. The Respondent accordingly submits that the Complainant’s claim, against the Respondent, for victimisation must fail on this fundamental ground. Without prejudice to the foregoing the Complainant has not taken any steps of the kind set out in section 74(2) of the Employment Equality Act as is required before a claim for victimisation can be advanced. The Complainant made no complaint of discrimination to the Respondent, either directly or indirectly, and his claim must fail.

The Respondent has provided a full defence as envisaged by the provisions of section 14A of the Employment Equality Act.

Jurisdictional Issues

Named Respondent

The first issue that I must decide relates to the jurisdictional issue raised by the Respondent that the Complainant has impleaded the incorrect legal entity in these proceedings. The Respondent submitted that the Complainant instituted proceedings against Pfizer Global Financial Solutions which is not a legal entity nor the registered business name of Pfizer. It was submitted that the Complainant was assigned to work in the shared services company and the more appropriate legal entity to name in the proceedings is Pfizer Shared Services Unlimited Company.  The Complainant said that within the contract he had with the Employment Agency he was told that he was working for Pfizer Global Financial Solutions. 

I note that the Complainant, an agency worker, was employed by an Employment Agency not by the Respondent and therefore he would not have access to pay slips with the name of the Respondent.  I note that the department in which the Complainant worked is called Pfizer Global Financial Solutions. I also note that the employees within this department signed off emails as coming from Global Financial Solutions. 

In considering whether the name can be amended to the correct legal name of the Respondent, I have adopted the reasoning of the Labour Court in the case of Ballarat Clothing Limited v Ann Aziz EDA151. The Labour Court adopted the jurisprudence of the High Court in the case of O'Higgins -v- University College Dublin & Anor [2013 21 MCA] where Hogan J held “Even if the wrong party was, in fact, so named, no prejudice whatever was caused by reason of that error (if, indeed, error it be). …In these circumstances, for this Court to hold that the appeal was rendered void by reason of such a technical error would amount to a grossly disproportionate response and deprive the appellant of the substance of her constitutional right of access to the courts”.

The Labour Court went on to say:

“In light of this acknowledgement the Court adopts the reasoning set out by Hogan J cited above and allows the appeal. Not to allow the appeal for such a technical reason where the correct respondent was aware from the commencement of the case that an error had been made and acknowledges it would suffer no prejudice by being named as the correct respondent would amount to a grossly disproportionate response and deprive the appellant of the substance of her right to have the complaint heard and decided on its merits”

In considering whether to amend the name of the Respondent to the correct legal name, I have considered whether the correct Respondent or its representative on notice of the proceedings, aware of the nature of the complaints and whether the correct Respondent would be prejudiced by allowing an amendment to the name. The Respondent was represented by a solicitor and barrister at the hearing and had provided a written submission before the hearing.  Counsel for the Respondent in response to a question from me said that they were happy to proceed with the case and said that there was no need to adjourn the hearing so that the correct Respondent could be notified. Therefore, I am satisfied that the correct Respondent was on notice of the proceedings and had responded to the complaints referred by the Complainant. Applying the jurisprudence cited above, I am satisfied that to amend the name to the correct Respondent and that no prejudice arises. For this reason, I will amend the name of the Respondent to Pfizer Shared Services Unlimited Company.

Agency Worker

The Respondent's counsel submitted that they were not the employer of the Complainant and therefore not liable. She submitted that he was an employee of Stirling Anderson Ireland Pty Limited trading as Walker Anderson and was assigned to them by CPL Resources plc who supplied Agency workers to the Respondent. Therefore, Walker Anderson was the Complainant’s employer in accordance with the definition at Section 2(3)(c) of the Acts which provides: "(c) in relation to an agency worker, the person who is liable for the pay of the agency worker shall be deemed to be the employer,"

I note that at the time the complainant worked in the Respondent company he was an employee of Walker Anderson which is an employment agency providing workers to CPL for the respondent. I note the Act provides:

"Section 2(1) of the Act defines a contract of employment as follows: -

contract of employment means, subject to subsection (3) --

(a) a contract of service or apprenticeship, or

(b) any other contract whereby –

(i) an individual agrees with another person personally to execute any work or service for that person, or

(ii) an individual agrees with a person carrying on the business of an employment agency within the meaning of the Employment Agency Act 1971 to do or perform personally any work or service for another person (whether or not the other person is a party to the contract), whether the contract is express or implied and, if express, whether oral or written;"

The term 'agency worker' is also defined in Section 2(1) of the Act and provides as follows: -

"agency worker" means an employee whose contract of employment is as mentioned in paragraph (b) of the definition of such a contract in this subsection;"

The term 'employer is defined by the same subsection as: -

"employer”, subject to subsection (3), means, in relation to an employee, the person with whom the employee has entered into or for whom the employee works under (or, where the employment has ceased, entered into or worked under) a contract of employment;"

The Act also applies to 'a provider of agency work'. Section 2(5) of the Act provides as follows: -

"A person who, under a contract with an employment agency, within the meaning of the Employment Agency Act 1971, obtains the services of one or more agency workers but is not their employer for the purposes of this Act is in this Act referred to, in relation to the agency workers, as the "provider of agency work".

Section 8 of the Act contains the general prohibition of discrimination. Section 8(1) provides:

"In relation to --

(a) access to employment,

(b) conditions of employment,

(c) training or experience for or in relation to employment,

(d) promotion or re-grading, or

(e) classification of posts,

an employer shall not discriminate against an employee or prospective employee and a provider of agency work shall not discriminate against an agency worker."

The Complainant was an agency worker doing work for the Respondent but was employed by and paid by an Employment Agency. It is clear therefore that the Respondent was the provider of work to the Complainant and not the Employment Agency.   Section 8 (1)(e) above provides that “a provider of agency work shall not discriminate against an agency worker."

Having regard to the above-mentioned Sections of the Acts and the evidence presented to the hearing, I find that the Respondent was the "provider of agency work" to the Complainant who was "an agency worker" within the meaning of the Acts and is therefore covered by the general prohibition of discrimination contained in Section 8 cited above.

In order to establish discriminatory treatment under the provisions of the Act the complainant must compare his situation to that of another agency worker. Accordingly, I am satisfied that I have jurisdiction to hear the claim referred against the Respondent.

Substantive Issue

The issues for decision by me are whether the Respondent discriminated against the Complainant on the race ground in relation to conditions of employment, harassed him and victimised contrary to the terms of the Employment Equality Act 1998 as amended.

 In reaching my decision I have taken into consideration all the submissions, oral and written, made to me by the parties as well as the evidence given by the witnesses at the Hearing.

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 grounds (and the descriptions of those grounds for the purposes of this Act) are—

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

8.—(1) In relation to—

(a) access to employment,

(b) conditions of employment,

(c) training or experience for or in relation to employment,

(d) promotion or re-grading, or

(e) classification of posts,

an employer shall not discriminate against an employee or prospective employee and a provider of agency work shall not discriminate against an agency worker.

(6) Without prejudice to the generality of subsection (1), an employer shall be taken to discriminate against an employee or prospective employee in relation to conditions of employment if, on any of the discriminatory grounds, the employer does not offer or afford to that employee or prospective employee or to a class of persons of whom he or she is one—

(a) the same terms of employment (other than remuneration and pension rights),

(b) the same working conditions, and

(c) the same treatment in relation to overtime, shift work, short time, transfers, lay-offs, redundancies, dismissals and disciplinary measures, as the employer offers or affords to another person or class of persons, where the circumstances in which both such persons or classes are or would be employed are not materially different.

(7) Without prejudice to the generality of subsection (1), an employer shall be taken to discriminate against an employee in relation to training or experience for, or in relation to, employment if, on any of the discriminatory grounds, the employer refuses to offer or afford to that employee the same opportunities or facilities for employment counselling, training (whether on or off the job) and work experience as the employer offers or affords to other employees, where the circumstances in which that employee and those other employees are employed are not materially different.

14A.  — (1) For the purposes of this Act, where —

(a) an employee (in this section referred to as ‘the victim’) is harassed or sexually harassed either at a place where the employee is employed (in this section referred to as ‘the workplace’) or otherwise in the course of his or her employment by a person who is  —

(i) employed at that place or by the same employer, 

(ii) the victim’s employer, or

….

or

(b) without prejudice to the generality of paragraph (a) —

(i) such harassment has occurred, and

(ii) either —

(I) the victim is treated differently in the workplace or otherwise in the course of his or her employment by reason of rejecting or accepting the harassment, or 

(II) it could reasonably be anticipated that he or she would be so treated, 

the harassment or sexual harassment constitutes discrimination by the victim’s employer in relation to the victim’s conditions of employment.

(2) If harassment or sexual harassment of the victim by a person other than his or her employer would, but for this subsection, be regarded as discrimination by the employer under subsection (1), it is a defence for the employer to prove that the employer took such steps as are reasonably practicable  —

(a) in a case where subsection (1)(a) applies (whether or not subsection (1)(b) also applies), to prevent the person from harassing or sexually harassing the victim or any class of persons which includes the victim, and 

(b) in a case where subsection (1)(b) applies, to prevent the victim from being treated differently in the workplace or otherwise in the course of the victim’s employment and, if and so far as any such treatment has occurred, to reverse its effects. 

(3) A person’s rejection of, or submission to, harassment or sexual harassment may not be used by an employer as a basis as a basis for a decision affecting that person.

…………

(6) Where subsection (5) applies in relation to a victim, subsection (1) shall have effect as if for ‘in relation to the victim’s conditions of employment’ there were substituted ‘contrary to section 11’ or, as the case may be, section 12.

(7) (a) In this section —

(i) references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds, and 

(ii) references to sexual harassment are to any form of unwanted verbal, non-verbal or physical conduct of a sexual nature, 

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. 

(b) Without prejudice to the generality of paragraph (a), such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material.”

Section 74

“victimisation” shall be construed in accordance with subsection (2).

(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, or

(g) an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs

Section 85A of the Employment Equality Acts, sets out the burden of proof necessary in claims of discrimination. It provides:

"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 case of Melbury Developments and Valpeters (Det. No. EA AO917) the Labour Court stated in relation to Section 85 A as follows:

"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.

The Labour Court in the case of The Southern Health Board v. Teresa Mitchell DEE 011, 15th February 2001 considered the extent of the evidential burden which a Complainant must discharge before a prima facie case of discrimination on grounds of sex can be made out. It stated that the Complainant 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 was no infringement of the principle of equal treatment.”

It requires the Complainant to establish, in the first instance, a prima facie case of discrimination, that is, facts from which it can be established that he was harassed and discriminated against on the race ground in relation to his conditions of employment.  It is only when she has discharged this burden to the satisfaction of Adjudication Officer that the burden shifts to the Respondent to rebut the prima facie case raised.

Conditions of Employment/Training

 The Complainant submitted that he was not provided with the training for some aspects of his role and was forced to carry out tasks for which he was not trained to do. He also said that he was given more complex cases than other work colleagues of a different nationality.

The Respondent’s case is that the Complainant is a qualified accountant and had the technical training to carry out his role. He was given on the job training by Ms ES a.

I note from the documentary evidence that Ms ES sent the Complainant a training guide for the markets he was dealing with.  Therefore, I am satisfied the Complainant was given on the job training and assistance to carry out his role.

The Complainant must establish facts from which discrimination can be inferred in accordance with Melbury cited above. The Complainant must provide some supporting evidence that he was treated less favourably than a person of a different nationality was treated in similar circumstances. However, there are no supporting facts from which discrimination on the race ground can be inferred. For this reason, I find that the Complainant has failed to establish a prima facie case that he was discriminated against in relation to this aspect of his complaint.

The Complainant complained that he was discriminated against in relation to tea breaks. He said that he took his tea breaks with 2 people of a different nationality to him, and they were not spoken to about the length of their tea breaks.

The Respondent stated the Complainant was taking extended tea breaks and this issue was raised with him in the context of his complaints about his workload.

I note the Respondent adjusted the Complainant’s workload following his complaint and he was now doing 30% less cases than his work colleagues.  It is not discriminatory treatment for the Respondent to raise issues of concern in relation to work performance or timekeeping issues with an employee.

In relation to the complaint that he did not get a replacement laptop whereas an Irish colleague had his laptop replaced, I note that the Complainant failed to follow the company procedure.

I am satisfied therefore that the complainant has not established that he was treated less favourably than another person of a different nationality was treated in similar circumstances. I find that the Complainant was not discriminated against in relation to this aspect of his complaint. 

Harassment 

The Complainant claimed that he was harassed during the course of her employment with the Respondent. He raised a number of particular incidents which he said was harassment on the race ground. He said that a work colleague said to him that “Chinese are the worst”, also made alleged derogatory comments about the Indian team, she unfairly criticised him and bullied him by trying to get him to do her work and set him up to fail by giving him work to do for which he was not trained. He also raised a number of other issues which he claimed was harassment on the nationality ground including alleging that he was assigned more complex work, his manager ignored him and did not talk when he approached his desk to submit his work. 

The Respondent said that the comment about Chinese employees was never made, and the Complainant did not make any complaint to management about it. It was submitted that the office was open plan and that if the comment was made it would have been overheard.  It was denied that the Complainant was demeaned or shouted at by any of his work colleagues. The Respondent has zero tolerance for any sort of discriminatory treatment of employees and if there was a complaint immediate action would have been taken to deal with the it. 

While the Complainant said that he reported the treatment to the Employment Agency he accepted he did not report the alleged comment to his manager. I note that the alleged incident took place on the 18th of December and the complainant did not raise it with his employer until his performance review 5 months later. The Complainant has not provided any corroboration of his claim that he was harassed because of his race. Furthermore, in relation to the work assigned to the Complainant it is not harassment for the Respondent to assign and expect the Complainant to carry out work which he believed that he was trained for and professionally qualified to do. In relation to the complaint about being ignored, I note that that the Team Manager had a tray on his desk for the team to submit their work so that he could continue his work without disturbance and have WebEx meetings and make telephone calls.   I am satisfied from the Team Managers evidence that the complainant was not treated any differently to the other team members.  Furthermore, it is not harassment for the Team Manager to provide the Complainant’s employer with a list of concerns about his performance.

As set out above the burden of proof is on the complainant to establish facts from which discrimination can be inferred. I am satisfied that the complainant has failed to establish any facts from which discrimination can be inferred. I find therefore that the Complainant has failed to establish a prima facie case of harassment on the race ground in relation to this aspect of his case. 

Victimisation

The Complainant claimed that he was victimised because the Respondent gave him an unfair performance review.

I am now going to examine the evidence to establish if the Complainant was subjected to adverse treatment as a result of making a complaint of discrimination pursuant to Section 74(2) of the EE Act cited above. 

The Labour Court in the case of Department of Defence v Barrett EDA 1017 stated in relation to victimisation:

“Protection against victimisation is a vital component in ensuring the effectiveness of anti-discrimination law. It enables those who considered themselves wronged by not being afforded equal treatment to raise complaints without fear of retribution. Article 11 of Directive 2000/78/EC requires Member States to introduce into their legal systems such “measures as are necessary to protect employees against dismissal or other adverse treatment by employers as a reaction to a complaint within the undertaking or to any legal proceedings aimed at enforcing compliance with the principle of equal treatment”

That obligation is given effect in Irish law by s.74(2) of the Acts. The definition of victimisation contained in that section contains essentially three ingredients. It requires that: -

1. The Complainant had taken action of a type referred to at s.74(2) of the Acts (a protected act),

2. The Complainant was subjected to adverse treatment by the Respondent, and,

3. The adverse treatment was in reaction to the protected action having been taken by the Complainant.

The Complainant failed to provide any evidence to support his claim of victimisation.  I am satisfied that the Complainant did not make any complaint of discriminatory treatment or harassment to the Respondent before the performance review was drawn up. Therefore, the Complainant cannot establish that he suffered adverse treatment as a result of making a complaint of discrimination. 

I find therefore the Complainant has failed to make out a prima facia a case of victimisation pursuant to Section 74(2) of the EE Act.

I find that the Complainant was not victimised pursuant to section 74(2) of the EE Act.

I find that the Complainant was not discriminated against or harassed pursuant to Section 6 of the Employment Equality Act 1998 and in terms of Section 8 and 14A of that Act.

I find that the Complainant was not victimised pursuant to section 74(2) of the EE Act.

Employment Equality Act 1998 – S. 6 discrimination, S. 8 conditions of employment, S14A harassment, S. 74(2) victimisation, Agency Worker, Provider of Agency Work, Correct name of the Respondent.