ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00040282

Parties:

	Complainant	Respondent
Parties	Jozef Kubicz	G4s Secure Solutions (Irl) Ltd

Representatives

Internal HR

Complaint(s):

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998	CA-00052160-008	09/08/2022
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998	CA-00052160-009	09/08/2022
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998	CA-00052208-008	11/08/2022
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998	CA-00052208-009	11/08/2022

Date of Adjudication Hearing: 29/06/2023

Workplace Relations Commission Adjudication Officer: Breiffni O'Neill

Procedure:

In accordance with Section 79 of the Employment Equality Acts, 1998 - 2015,following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

The Complainant attended the hearing on his own. Two employees gave evidence on behalf of the Respondent. Evidence was taken on oath/affirmation and the opportunity for cross-examination was afforded to the parties.

Due to commercial sensitivity, I have anonymised the names of the Respondent’s clients and the names of the buildings in which the Complainant worked.

Background:

The Complainant began working as a Security Officer for the Respondent on 12 July 2005, receiving a salary of €1,469.44 per fortnight. He alleges experiencing age-based discrimination in two instances. Firstly, he claims that following an incident on 10 May 2022, the disciplinary procedures applied to him were not equally applied to another employee who engaged in similar activities. Secondly, he believes he was discriminated against when he was assigned to work in a different building to his colleagues due to his age, resulting in him receiving a lower rate of pay.

Summary of Complainant’s Case:

CA-00052160-008:

On 10 May 2022, the Complainant stated that he was placed on paid suspension pending the findings of an investigation into allegations that he allowed a person into the building where he worked without having adhered to the proper security procedures, which he denies. He asserted that the same procedures he was subjected to were not applied to others which he stated constituted discrimination on age grounds. Specifically, he gave the name of a work colleague, Mr Jim Perez de Alderete, who the Complainant stated allowed two unauthorised people onto site but, unlike him, was not suspended.

CA-00052160-009:

The Complainant stated that the building in which he originally worked was operated by Company X, but since 2021 had been operated by Company Y following a demerger. The Complainant stated that he was discriminated against when he was assigned to work in the building operated by Company Y. Specifically, he asserted that he was discriminated against on the grounds of age because he was the oldest employee to have been appointed to work in the building operated by Company Y. He further stated that following the decision to assign him to the building operated by Company Y, he was now paid less than colleagues doing the same work who were based in the building operated by Company X, because they had received pay increases and he had not.

The Complainant accepted in cross-examination that he had spent most of his time since mid-2020 working in the building that Company Y now operated.

Summary of Respondent’s Case:

CA-00052160-008

Mr Jim Perez de Alderete of the Respondent gave evidence and disputed that he allowed two people onto site without adhering to the proper security procedures as the Complainant alleged. Specifically, he stated the two people in question were both employees of the Respondent and that a pool badge had been used in respect of them, which was valid until December 22 2022, and that prior authorisation had been given for them to access the building on the day in question. This was unlike the person the Complainant had allowed onto site who was not an employee of the Respondent and had no prior authorisation to access the building.

CA-00052160-009:

Mr Steven Anderson gave evidence on behalf of the Respondent and stated that the building at which the Complainant’s work site is currently located houses a high security data centre which was originally operated by Company X but has been operated by Company Y following a demerger in 2021. The Respondent continues to provide security services at the building for Company Y as well as at other buildings for Company X.

In addition, Mr Anderson stated that following the de-merger, the Respondent successfully renegotiated its rates with Company X on 1 April 2022, which enabled them to provide an increase in the hourly rate of pay to those employees working in the buildings operated by Company X. This increase did not apply to those employees working in the buildings operated by Company Y. In April 2023, the Respondent signed a contract directly with Company Y and the rates of pay were brought in line with those working in the buildings operated by Company X.

Mr Anderson also stated that the Complainant was chosen to work at the building operated by Company Y because of his knowledge of the building at the time.

Findings and Conclusions:

CA-00052160-008:

The Law

Discrimination in accordance with the Acts is set out in section 6 and states:

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,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned,

( b ) a person who is associated with another person —

(i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and

(ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a) , constitute discrimination.

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

( a) that one is a woman and the other is a man (in this Act referred to as “ the gender ground”),

( b) that they are of different civil status (in this Act referred to as “ the civil status ground ”),

( c) that one has family status and the other does not (in this Act referred to as “ the family status ground”),

( d) that they are of different sexual orientation (in this Act referred to as “ the sexual orientation ground”),

( e) that one has a different religious belief from the other, or that one has a religious belief and the other has not (in this Act referred to as “ the religion ground”),

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

( g) that one is a person with a disability and the other either is not or is a person with a different disability (in this Act referred to as “ the disability ground”),

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

The Burden of Proof

The Equality Act 2004 inserts a new section, 85A, into the Employment Equality Acts 1998 – 2015.

“85A – (1) 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.”

Findings

The effect of s.85A above is to place the burden of proof in the first instance on a Complainant, to establish facts which, on an initial examination, lead to a presumption that discrimination has occurred.

I note firstly that the Labour Court in its decision on Arturs Valpeters v Melbury Developments [2010] 21, ELR 64, addresses the onerous nature of the burden of proof:

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

In accordance with the Labour Court in the Valpeters decision, cited above, to succeed in a complaint of discrimination, the Complainant must show that he was treated differently from his colleague, who the Complainant alleged allowed two people into the building without authorisation around the same time that he was accused of doing likewise. Specifically, he must prove that the same procedures the Respondent applied to him, namely the suspension of him from his employment pending an investigation, were not applied to his colleague because of his age.

When considering whether the Complainant established a prima facie case of discrimination in respect of this complaint, it is necessary to consider Mr. Jim Perez de Alderete's testimony. He stated that none of the security protocols were breached because both individuals involved were employees of the Respondent and had prior authorisation to enter the building. Since they had obtained proper authorisation, no security protocols were breached. Hence, there was no basis for the Respondent to have suspended Mr. Perez de Alderete in the same manner as the Complainant, who was accused of allowing a non-employee into the building.

Considering the foregoing, I find that the Complainant was not discriminated against.

CA-00052208-009: