Complainant

Respondent

Parties

Keyte  Mc Cauley

Aldi Stores (Ireland) Ltd

Complainant

Respondent

Anonymised Parties

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Representatives

  In person

Kiwana Ennis BL instructed by Walter Beatty Solicitors of Vincent & Beatty LLP

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000

CA-00055400-001

04/03/2023

Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000

CA-00057686-001

13/07/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00057686-002

13/07/2023

At the commencement of the Adjudication hearing on 29 November 2023 the Complainant advised that the two complaints that she brought under the Equal Status Act 2000 (ESA) would not be pursued [CA-00057686-001 and CA-00055400-001] and the complaint under the Employment Equality Acts, 1998 (EEA) would be pursued [CA-00057686-002.]

The Complainant alleges that she was subjected to race-based discrimination whilst an employee of the Respondent.

The Respondent denies the complaint.

Under affirmation the Complainant gave the following evidence:

She started working for the Respondent on 1 September 2021 as a sales assistant.

She gave notice of her intention to resign on 5 February 2023 and her employment ended on 16 February 2023.

She contends that during her employment she was subjected to discriminatory treatment by her Store manager on grounds of race. The Complainant is Brazilian.

Extension of Time

In response to the Respondent’s preliminary application, that the EEA complaint is statute barred, the Complainant sought an extension of time (6 to 12 months) on the basis of reasonable cause –that her first complaint form (dated 4 March 2023) whilst inaccurate insofar as the legislation she cited was incorrect (ESA,) within the narrative of that complaint, she described her complaint as being that she was discriminated against at work by her store manager, ie employment discrimination. The Complainant contended that because she was then (and remains) not legally represented, an extension of time is necessary to allow an investigation into allegations of discriminatory conduct at work by the Respondent that occurred on 22 December 2022 and between January - February 2023.

Substantive Complaint

The Complainant gave evidence that she was treated adversely by her Employer on grounds of race. She contended that her Store manager treated her adversely and nothing was done about it when she complained about her.

The adverse treatment that the Complainant alleges she was subjected to was two-fold.

With a background of the Respondent Store manager criticising and undermining her the following acts of discrimination occurred:

1.       The Complainant was the only employee who did not receive a Christmas voucher on 22 December 2022. When she brought this to the attention of her immediate line manager, he said that he would inquire into it, but nothing was done. As a result of which she felt singled out, isolated and made feel less than her other work colleagues.

2.       The Complainant was required to work every weekend from the start of 2023 until she left, unlike the other employees.

After the voucher situation was ignored and she was expected to work every weekend, the Complainant had enough and resigned her position.

Under cross examination the Complainant conceded the following:

The work roster was set four weeks in advance.

If an employee wanted time off, they were required to ask management four weeks in advance ie before the roster was set.

Of the weekend working days in 2023, the Complainant only requested to not be rostered on Saturday 11 February and she was not rostered on that date.

Other than Saturday 11 February she did not request to not be rostered on any other weekend date from the start of January until her employment ended on 16 February 2023.

She accepted the Respondent’s spreadsheet data showed that in 2021 of the days she worked in total she worked 53% weekend days; in 2022 she worked 44% weekend days and in 2023 she worked 69% weekend days. She accepted that other employees worked more weekend dates than she did in 2021 and 2022, although she was out of the country a lot in 2022.  When advised by Respondent Counsel that the percentage was based on the days that she worked over the days that she was available to work, meaning that the comparison with other workers was not distorted, she did not respond.

She said it was when she saw the January 2023 roster in which she was rostered to work every weekend, that she believed that this weekend heavy work would continue throughout 2023 which was unworkable and did not allow her to have time to spend with her family. She believed this unfair roster was the Store Manager trying to force her to resign.

She says the reason she believed she did more weekend work than any other worker in 2023 was on foot of conversations she had with other staff.

Of the weekend workdays in 2023 she accepts that she was not rostered to work on Sunday 15 January or Saturday 21 January, and she accepts that when she requested to take Saturday 11 February off, she was not rostered.

She identified an Irish worker who she felt may not have been required to work as many weekend days as her. But when she considered the Respondent’s spread sheet, she accepted that the data showed that in 2022 this worker in fact had worked more weekend days than the Complainant in 2022. She again said that her 2022 figures were low because she was in Brazil for 2/3 months but she accepted that when she was in Brazil for this period, she didn’t work at all – weekends or any days. She accepted that this long period of work absence was not usually granted by management and that they allowed her because she needed to travel home to Brazil. She did not accept that this was in fact more favourable treatment than other workers received, as opposed to being adverse treatment.  

She said that she was treated poorly by her Store manager who criticised her and told her that no manager wanted to work with her. The Complainant became stressed and upset, often at work. And then she didn’t get a Christmas voucher but everyone else did. Particularly at Christmas time this was a particularly mean way to treat her.  The voucher issue was a tipping point for the Complainant. Then, on top of that, being rostered to work every weekend in the first 6 weeks in 2023 and the fact that the voucher issue was not dealt with when she told her line manager led her to decide that she would be better off leaving.

She accepted that she did not complain to the Store manager about the voucher issue or weekend hours but responded why would she, this being the very person who was penalising her. She accepts that she didn’t raise it with the Area Manager.

She accepted that the handbook states that if an employee has a grievance with a Store Manager that the person that they are to report to is the Area Manager. She accepted that she didn’t know that her contract referred to an employee handbook which could be found on the Employee/Management IT system. She accepted that this handbook includes a grievance process and an equality opportunity/prevention of discrimination policy. She accepted that her contract was read out to her but that was at the start of her employment, a long time ago. When all this came to a head, the Complainant was not aware of the handbook, the equality opportunity/prevention of discrimination policy or the grievance process and she accepts that she did not utilise these processes.

She accepted that she was good at her job, but she did not accept that the Store manager ever told her that. The Store manager only criticised her, belittled her and ignored her.  

She accepted that the Store Manager asked her to conduct a staff survey.

She accepted that the Store Manager allowed her 3 consecutive weeks of annual leave in March 2022 and that this was exceptional (2 weeks was the maximum amount of annual leave that could be taken at one time.)  She said needed this because she was going to Brazil to visit her grandmother who was unwell. She tried to be friendly to the Store manager and “buy peace” by giving her a present on returning from annual leave.

She did not accept that the Store Manager was never made aware of the Complainant having a problem with her. She complained to two of her line managers, although she accepted that both managers were subordinate to the Store manager in terms of management hierarchy. She accepts that she did not complaint to the Area Manager, but that was because every time the Area Manager attended the Store, the Store manager was always with her.

She accepts that she never expressly raised any complaint of discriminatory treatment with management. It was only after she left that she felt that she had been treated very badly that she issued the WRC complaint.

She stated that even on her last day the Store Manager tried to upset her by telling her that she needed to work her notice period out, to which the Complainant replied that she had another job lined up and couldn’t work there anymore.

The Complainant felt the Store Manager treated her less well than the Irish employees who worked for the Respondent. She treated the Complainant with disdain and set out to undermine and to upset her.

Counsel on behalf of the Respondent made the following submission points:

Time Limit

1.       The EEA complaint (with respect to the alleged breach at the end of December 2022 – the Christmas voucher) is outside the 6-month time limit. The EEA complaint issued on 13 July 2023.  No reasonable cause has been shown to explain the late filing of the complaint and ignorance of the law is no excuse.

2.       The EEA complaint (of being forced to do excessive weekend work) is within time if it is accepted that the alleged breach is having to do weekend work and about which the Complainant raised complaints with her line manager and later with the Store Manager in the second half of January (after 13th) or in February 2023

Substantive Complaint

3.       The Complainant has not provided any Irish comparator to base her race discrimination complaint.

4.       While the Complainant may “feel” that she was discriminated against, a suspicion, a feeling, a sense or a belief is not sufficient to discharge the burden of proof.

5.       In a race equality complaint, the Complainant is obliged to prove is that she was treated adversely because she is Brazilian or non-Irish. There is no evidence to support this complaint. The complainant’s evidence is confined to a belief which is not supported by any evidence.

Christmas Voucher

6.       It is accepted that the Complainant did not receive a Christmas Voucher in 2022 but this was because when the vouchers were being organised, the Complainant was in Brazil and was erroneously omitted from the list.  When she was not given a voucher as the others were on 22 December it is accepted that she raised this with her line manager and that he said that he would look into it, but this was on 22 or 23 December 2022, at a very busy time and thereafter it was mistakenly forgotten about. The Respondent accepts that should not have occurred and apologises for this, but the mistake was not intended. The Complainant got the voucher in 2021.  The error was not because the Complainant was non-Irish, and all the other non-Irish staff received a voucher.

7.       The Complainant could have raised this with the Area Manager, but she did not.  

8.       There was no basis for the Complainant to assume that the reason that she did not receive a voucher was because she was Brazilian/ non-Irish

9.       And even if this occurred due to an interpersonal problem at work between staff (which the Respondent denies) that does not proof of race-based discrimination.

Weekend Work Hours

10.   The Respondent denies that the Complainant was required to work more weekend days than other employees either in 2023 or in previous years.

11.   The Respondent’s work sheet data shows that in 2021 and 2022 she was not required to do any more weekend hours than her colleagues.

12.   The data showed that Irish comparator that the Complainant referred to during the hearing (having not provided a comparator prior to the hearing) did more weekend hours in 2022 than the Complainant had.

13.   It is accepted by the Respondent that the Complainant did the second highest amount of weekend hours in the first 6 weeks of 2023 (69% as opposed to the highest of 75%) however she did not request to be not rostered on weekends, as she should have done if she wanted not to be rostered. And the weekend days that she asked not to be rostered on, she was not rostered.

14.   Weekend work is not popular but needs to be done. These days are spread out evenly among staff over the course of a year. If the Complainant had continued with her employment the high amount of weekend hours that she did in the first 6 weeks of 2023 would have been evened out as time went on.

15.   The roster is initially produced by an AI system which can be changed then by managers if requests to change the rota are made within time, but no such requests were made by the Complainant, either in time or at all and the one request that was received was accommodated.

Law

16.   The Complainant has not proven a prima facie case of discrimination

17.   She has not proven facts from which it may be presumed that she was discriminated against on grounds of race.

18.   As a prima facie case has not been proven the Respondent is not under an obligation to give evidence.

19.   A presumption of discrimination may arise where facts are proven not a feeling or a belief that discrimination has taken place. The Complainant records in her own complaint form that it was “maybe (because she) was not from Ireland.” This is, at most, a theory or a suggestion of possible explanation. It falls far short of proving of race discrimination.

20.   Adverse treatment has not been proven, much less adverse treatment because the complainant was not Irish or was Brazilian.

21.   The Respondent accepts now that the Complainant was unhappy and felt the need to leave her job (although neither were known at the time) but it is denied that she was discriminated against on the ground of race.

22.   Of the 27 employees working in the Respondent store, 8 were non-Irish

23.   The burden of proof that the Complainant is obliged to discharge as set out in section 85A of the EEA and as interpreted by the Superior Courts and the Labour Court, has not been met.

On 8 December 2023, following the adjudication hearing the Complainant sent an email to the WRC in which she asked that a number of other incidents of adverse treatment be also considered by this Adjudicator. She then set out additional allegations of adverse treatment against the store manager that were not referred to by the Complainant during the adjudication hearing and were not cross examined upon.

I instructed the WRC to respond to the Complainant to advise her that the evidence that may be considered by an Adjudicator needs to be given under oath at the Adjudication hearing and that I could not allow for an expansion of the complaint that had not been set out in the complaint form and/or was not referred to during the Adjudication hearing. It is noteworthy however that in none of the “new evidence” was there evidence to show that her alleged ill treatment by her store manager was because of her race.

In respect of the complaint as identified on the complaint form and evidenced by the Complainant during the Adjudication hearing my findings are as follows:

Time Limit

I am satisfied that there is no requirement for me to extend time in respect of this complaint. The Complainant’s first complaint (which issued on 4 March 2023) allowed an investigation into alleged breaches going back to 4 October 2022. Although that complaint form cited the incorrect Act (ESA and not EEA,) within the narrative of the form the Complainant identified her case as being race-based discrimination at work. The decision of Louth County Council v. The Equality Tribunal and Branigan IEHC 24 July 2009 provides me with the authority to treat the Complainant’s (4 March 2023) ESA complaint as one that is capable of and more appropriately being treated as an EEA complaint. And the Respondent provided a defence to the EEA complaint so is not prejudiced.  I find that the complaints of alleged breaches which occurred in December 2022 and between January and February 2023 to be within time.

If I am incorrect in this and if the Respondent objects to my approach on the basis that I asked the Complainant at the commencement of the hearing to confirm if both ESA complaints were withdrawn, and she assented, alternatively I would apply my discretion to extend time to 12 months on the basis that the Complainant believed (albeit wrongly) that she had issued the correct complaint in March 2023 and this why she did not issue the corrected EEA complaint until 7 July 2023. Given that she was not legally advised in March 2023 but was so advised in July 2023 I consider that the delay in issuing her complaint was reasonable and the test for reasonable cause is met.

The Employment Equality Act 1998 (EEA)

Section 6 of the EEA defines discrimination as occurring where “a person is treated less favourably than another person is, has been or would be treated in a comparable situation” on any of the protected grounds.

Section 8 of the EEA prohibits discrimination on any of the protected grounds in respect to “conditions of employment.”

Burden of Proof

Section 85A of the EEA sets out the burden of proof provision. To satisfy the prima facie test, the Complainant must establish facts from which it may be presumed that discrimination has occurred and that it is only after doing so, that the burden shifts to the Respondent to prove the contrary.

In Mitchell v. Southern Health Board [2001] ELR 201 the Labour Court referred to the evidential burden that must be met by a complainant (in a claim of gender discrimination but which now is equally applicable to all discrimination claims) in the following terms:

“It is necessary, however, to consider 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. The first requirement of Article 4 of the Directive is that the complainant must ‘establish facts’ from 8 which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a complainant 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 appellant to prove that there was no infringement of the principle of equal treatment.”

In Cork City Council v. McCarthy EDA0821, the Labour Court stated as follows about the burden of proof:

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

In order to shift the burden of proof to the Respondent, the Complainant must not only establish the primary facts being relied upon but must also establish that those facts are of sufficient significance to raise an inference of discrimination.

Unevidenced assertions are not sufficient to establish a prima facie case. In Melbury Developments Ltd v. Valpeters EDA [2010] ELR 64 the Labour Court stated 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. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.”

Application of Law to the facts

The fact that the Complainant does not rely on a comparator in support of her claim creates a hole in the evidence that the Complainant is required to adduce.

She has not evidenced that– because she is Brazilian and/or a non-Irish person – she was treated adversely compared with the way her Irish colleagues were treated.

The Complainant asserts that she was bullied and harassed by the Store Manager. I accept that the Complainant felt this and was upset at what she regarded to be unfair treatment. I accept that the conduct of the Respondent in failing to issue her with a Christmas voucher when all other workers did receive one and failing to respond adequately to her complaint when she raised it resulted in her feeling singled out and unfairly treated. I feel sympathy for the Complainant in how she felt.

However, while the above evidence may prove that unfair treatment occurred, it does not prove that it occurred because of the Complainant’s race.

I understand that the Complainant issued this complaint in the hope of obtaining a finding, an acknowledgment, that she was treated unfairly by her Store Manager.  But that is not what this case is about. This complaint is not directed at a finding that she was unfairly treated. It is directed at a finding that she was discriminated against because of her nationality/ race. Unfair treatment of itself does not equate to discriminatory conduct and the Complainant appears to have incorrectly conflated these two issues.

What remedies are available for alleged bullying and harassment?

As the Complainant is not represented, I consider it appropriate within this decision to distinguish between what discrimination is and what it is not.

Discrimination is unlawful if it is on prohibited grounds. There are nine prohibited grounds. These are gender, marital status, family status, sexual orientation, religion, age, disability, race and membership of the Travelling Community. Other than on these grounds if a person discriminates or treats another adversely, no presumption of unlawfulness arises.

If unfair treatment takes place in the form of bullying (which is denied by the Respondent) for a non-prohibited reason, for example because a manager does not like working with an employee; because a worker supports a sports team, has a particular colour of hair, is right or left handed, etc. in other words for a reason that is not prohibited, no relief is available under the EEA because only prohibited discrimination is unlawful.

A complaint for bullying and harassment - if it results in an employee having to resign - could be brought to the WRC under the Unfair Dismissals Act 1977 (as a Constructive Dismissals complaint.)  This was not done in this case. But even if it had been, relief under the UDA can only be obtained if the employee concerned had exhausted the company grievance process before resigning.

There are other reliefs for bullying under the Industrial Relations legislation but again the grievance procedure would need to be exhausted before a complaint may be upheld.

It is regrettable that the Complainant did not use the Respondent’s grievance process. If she had, matters might have been brought to the fore and dealt with. It is a matter for each employee to make themselves aware of all their terms and conditions of employment. This includes knowing the content of their contract and employment handbook. Every employer is obliged to provide a process of dealing with an employee complaint but it is up the employee to utilise the process. A grievance process was available to the Complainant, but she was unaware of its existence. I accept that her managers could have and should have reminded her about the grievance process– if had they known that she wanted to raise a grievance – but the primary duty to know about the company grievance process lay with the Complainant herself.

Returning to the equality complaint it is important to underline that proof of race discrimination is not discharged by the evidence of adverse treatment alone. There needs to be an evidential nexus between the alleged adverse treatment and discriminatory conduct. I find that that nexus is missing in the Complainant’ evidence.

Conclusion

I am satisfied that the Complainant has not discharged the burden of proof in this complaint. She has not established facts which would allow a finding that her (asserted) unfair treatment (which is denied) was due to her being not Irish or being Brazilian.

The assertion of race discrimination in this complaint remains that, an assertion or a belief which is not supported by evidence.

As the Complainant has not discharged the burden of proving a prima facie case of race-based discrimination, I am compelled to find that this complaint is not well founded.

I find that this complaint is not well founded.

Race Discrimination - EEA