Complainant

Respondent

Parties

Humayun  Arbab

Securway At Risk Security Group Limited.

Complainant

Respondent

Representatives

Sherwin O'Riordan Solicitors

 Warren Parkes Solicitors

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-00040393-001

13/10/2020

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

CA-00043981-001

10/05/2021

The complainant has submitted two complaints of discrimination under the Employment Equality Act, 1998-2015 (the “Acts”), that he was discriminated against on the grounds of race and of disability. He further claims that he was constructively discriminatorily dismissed on March 4, 2021.

The complainant is from Pakistan.

He commenced employment in the position of Security Officer at a Dublin hospital in St. in 2005. He was subsequently promoted to the role of Supervisor in October 2017.

 The last act of discrimination occurred on 13 August 2020. He submitted his complaint to the WRC on 13 October 2020.

His salary is €620 gross per week.

CA-00040393-001. Complaint under section 77 of the Employment Equality Act, 1998.

The complainant was initially appointed as security officer in 2013, doing patrols, lock up and reception duties in a Dublin hospital  to which the respondent was contracted to provide security services.

He progressed to a supervisory role in 2017.

The complainant submits that the respondent discriminated against him on the grounds of race in terms of less favourable sick leave benefits relative to those afforded to his named comparator, an Irish employee, and also by the failure to pay him retrospection on the supervisor’s allowance.

He further submits that he was discriminated against on grounds of race and disability when he was demoted from the poison of supervisor on 5 August 2020.

He was victimised.

The last act of discrimination occurred on 13 August 2020

Witness 1. Direct evidence of complainant given under affirmation.

The complaint of discrimination on the grounds of race in terms of the failure to pay him retrospection on the supervisor’s allowance.

The respondent Operations Manager and Security Administrator offered the role of supervisor to the complainant in October 2017 because he was the more senior security officer. He accepted their offer.

The duties differed from those done by a security officer in that he did the roster, covered sick absences, chose who worked in A and E etc.  He was supposed to get an extra €0.50 per hour. He was not paid the allowance. His Irish colleague and named comparator, Mr K, was paid the allowance from the date of his appointment to the position of supervisor.

He complained to the respondent Security Administrator and Operating Manager. The complainant also asked the Operations Director to resolve the issue of the supervisor’s allowance. He finally got the extra €0.50 per hour in July 2019 but no retrospection. Both the Security Administrator and Operating Manager told him in 2019 that they would give him the retrospection and that he would receive it but he didn’t.  He requested it again in February 2020 upon his return from sick leave.

The complaint of discrimination on the grounds of race in terms of paid sick leave provisions.

The complainant was on sick leave absence from November 2019 – February 2020 having suffered a stroke. During this period the Security Administrator told the complainant that his replacement, Mr L, was loving his position.

The complainant’s named comparator, an Irish colleague, told him that he had received full pay while on sick leave during the same period whereas the complainant was getting disability benefit from Department of Social Protection. He sent an illness benefit form to the Security Administrator on 26/11/2019.The complainant stated that he asked the Security Administrator  why his comparator was getting full pay while on sick leave and she told him it was because he sustained an injury at work.

He returned in February 2020 on part time hours. There was no return-to-work meeting after this period of sick leave.

He was diagnosed as medically vulnerable due to Covid -19 and his diabetes. He was certified unfit to work from 3 April 2020 – 5 August 2020.

The complaint of discrimination on the grounds of race: demotion of complainant on   5 August 2020.

The complainant’s role as a supervisor involved assigning his team duties for reception, patrol etc., ensuring that sick cover was in place for his team, ensuring all members of the team performed their duties and also training new employees among other duties.

The complainant rang the Operations Manager who told him to meet him on 31/7/2020 for what the complainant understood to be a return-to-work meeting after a four-month period on sick leave. Mr C, a fellow operations Manager also attended the meeting

At this meeting they told him that they were interviewing for supervisors’ positions. He replied that he was a supervisor. They stated that it was a new role. At this point he was still on sick leave and his position was being covered by a colleague, Mr. L. The two managers advised that he would have to be trained in the new role. They told him that he was to come back on normal security, non- supervisory duties and after a few weeks of familiarising himself with the Covid- 19 sponsored changes, he could resume his  supervisory  role and duties.

Until 5 August he was still part of the supervisors’ and managers’ what’s app group but was removed from it by the Rostering Manager and the Operations Manager on that date.

The respondent notified him on 5 August that he had been unsuccessful in the interview held on 31 July for the position of supervisor. He worked as a security officer for a further few weeks. The Operations Manager told him that he would resume as a security officer, one week on, one week off and could retain his supervisor’s allowance. He challenged the interview for his own role. His replacement, an Irish employee, retained the role of supervisor, previously done by the complainant. The complainant’s supervisor was Mr H, an Irish employee. He is not aware if he was interviewed for the role.

In March 2021, he became ill again. He submitted his resignation. His health and family life were badly affected by his treatment.

Complaint of discrimination on the grounds of disability: demotion on the 5 August.

The complainant contends that his disability also influenced the decision to demote him.

His absence from work due to illness for the period April to August 2020 led the respondent to demote him as did the respondent’s knowledge of his diabetes.

The respondent failed to investigate the complainant’s health after his return to work on the 5 August 2020.

He maintains that his Irish colleague who had been out sick was allowed to retain his position as a supervisor.

CA-00043981-001 Complaint under section 77 of the Employment Equality Act, 1998.

Complaint of constructive discriminatory dismissal.

The complainant tried many times to secure retrospection on his supervisor’s allowance but was met with indifference.

Complainant’s direct evidence

His demotion was very unfair and unjust.

After he had suffered a stroke in November 2019, his doctor told him to lead a healthier life.

The stress induced by the respondent’s failure to demote him and failure to pay him retrospection on the supervisor’s allowance led to him taking up smoking again.

He maintained that he had to resign.

Regarding the respondent’s suggestion that he reconsider his resignation while the respondent tried to follow up on retrospection, the complainant had experienced two years of indifference from the respondent to his previous request for retrospection.

Mitigation

He took up a new position as a supervisor in another Dublin hospital on 22 March 2021 on the same salary.

Cross examination of complainant.

CA-00040393-001. Complaint under section 77 of the Employment Equality Act, 1998.

The complainant confirmed that Mr. P was his supervisor on the day shift in October 2017. The complainant was working on the night shift. Mr. P went to his home country to tend to his child. The complainant took up this replacement role of supervisor while Mr.  P was away. To the point that the Operations Manager and the Rostering Manager will say that he was told that it was temporary position, the complainant stated that Mr.  P was on the day shift. An Irish supervisor on the night shift resigned and the complainant states that he was appointed as supervisor on the night shift. There was no interview. He was not told that it was a temporary position. He states that he cannot recall if they told him it was permanent. He confirmed that he covered on an occasional basis in a supervisor’s position if they were absent until 2017.

Following his sick leave, he was confirmed fit to resume work in February 2020.

Because of the risks posed by Covid -19, and in view of his diabetes, he worked part time hours-two days a week from February until April 2020. His days on his first week back were fixed and suitable but the Rostering Manager changed his roster. He asked her to call the Operations Manager about this.

The complainant stated that the Security Administrator refused to sign the casual dockets necessary for social welfare payments. He denied that he got angry and left the office when she refused to sign these dockets.

The complainant stated that the Security Administrator told him on 15 July 2020 that he was to have a fitness to return to work meeting.

He has no memory of the Operations Manager speaking to him between 15- 24 July about changes in the workplace.

The complainant stated that despite the employer’s accommodation in relation to working hours, in the period February – August 2020, the respondent did change and become unfriendly in August 2020.

He stated that the Operations Manager told him that he would have to come back as a security officer, and then a few weeks later he would revert to a supervisor’s role. Regarding the changes the complainant accepted that PPE was a change in the protocols.

The complainant does not remember if there was meeting with the respondent on the 29 July at which the Operations Manager was reported to have told the complainant about a new contract with the hospital and that there would be new supervisor positions.  The complainant does not remember calling to see the respondent on 29 July, irrespective of whether his card was used to access the site at which the Operations Manager was located. The complainant has no memory of any such meeting.

Concerning the supposed interview on 31 July, the complainant thought he was going to a back to work welfare meeting.

When he returned to work on the 5 August, he was paid the supervisor’s rate. He was familiarising himself with the new protocols.

On 5 August he was told that he had been unsuccessful at the interview for a supervisor’s position but that he would be retained on the supervisor’s rate and would have a tutor like role inducting new security officers. The witness refused that role. He did not perform the tutor’s role.

 To the point that the Operations Manager and Security Administrator, St. James’s will say that they told him of the interview 2 weeks before 5 August, the complainant stated that the interview was a surprise.

CA-00043981-001 Complaint under section 77 of the Employment Equality Act, 1998.

Complaint of constructive discriminatory dismissal.

Cross examination of complainant.

He applied for a position, early 2021, in another Dublin hospital. He may have been told late February / early March that he had succeeded at interview. His pay and conditions are better in this other hospital.

He denied that he was delighted with the better pay and conditions in the other hospital or that it was the factor in his resignation. It was the respondent’s treatment of him, his demotion from the supervisory position to carrying out duties in a non-supervisor capacity and not money which led him to resign.

He cannot remember if anyone helped him with his resignation email of 4 March 2021.

He maintains that he had no choice but to resign given the respondent’s sustained mistreatment of him over a three-year period.

CA-00040393-001. Complaint under section 77 of the Employment Equality Act, 1998

The respondent denies that they discriminated against the complainant on any of the discriminatory grounds set out in the Acts.

The respondent is a provider of security services to the healthcare, public, commercial and construction industries.

Witness 2 . Operations Director’s evidence given under affirmation.

The complaint of discrimination on the grounds of race in terms of paid sick leave provisions.

The Operations Director confirmed that the ERO for the security industry, S.I. No. 231 of 2017, which includes an Attack Rate, provides for 26 weeks full pay in the event of a workplace injury. The Irish colleague, the named comparator, was the beneficiary of this arrangement. The respondent had never paid any employee more than 5 weeks sick except for those entitled to the Attack Rate.

Discrimination on the grounds of race: failure to pay the complainant retrospection 

The complainant’s rate increased by €0.50 in July 2019. His claim for retrospection was not initially addressed.

Witness 3. Security Site Administrator’s evidence given under affirmation

She had no contact with the complainant between March and July 2020.

The complainant’s promotion to the post of Supervisor.

In 2017, Mr. P, Roster manager, wanted to take 3-6 months off.  Another supervisor was leaving in October of 2017. Mr. P returned in March 2018 to his daytime position. The complainant continued on in the night- time supervisory role.

In November 2019, the complainant went out on sick leave and Mr L replaced him.

Accommodating the complainant’s health needs.

In December 2019, she and Security Manager met the complainant to see how they could facilitate him with working a 24-hour week. They gave him 2 shifts per week

He returned to work in February 2020. The complainant came into the witness asking her to sign casual dockets and asked the witness to state on these that she had no work for him. As this was untrue, she declined. The complainant became argumentative and left the office.

 Cross examination of witness

She confirmed that Mr. P was on day shifts.

She accepted that the complainant verbally requested retrospection on the supervisor’s allowance on a number of occasions. She could not say if Mr L was paid the extra €0.50 an hour from the commencement of his appointment as a supervisor. She does not know what he was paid.

Witness 4. Security Manager’s evidencegiven under affirmation.

Failure to pay the complainant retrospection from the October 2017- July 2019.

The complainant was offered the temporary supervisor’s role in 2017 as Mr. P, the roster manager and lead supervisor had to take family leave. The deal agreed between Mr. P and the complainant was that he would take on Mr. P’s role on an ad hoc basis until Mr.  P returned from family leave.

The complainant was a great employee. The respondent never had any problems with him.

The witness accepts that he was entitled to the supervisor’s rate even though the role was temporary. The witness sent the relevant documents to his Head Office to action.

In October 2018 the respondent SAR was bought over by MCR. The pay structures were aligned with MCR, but it took time.

The complainant asked the witness about retrospection. The witness stated that temporary cover doesn’t automatically attract €0.50 hourly increase.

Accommodation of Complaint’s health needs.

He met the complainant in December 2019. He was concerned for the complainant’s health. They agreed he could come back on a phased basis. It was not a formal welfare meeting. They chatted about what had to be done.

The Security Site Administrator told him what had transpired at the meeting of 2/3/2020 where the complainant asked her to confirm on the relevant forms that the respondent had no work for him. She had been very upset. The witness in turn sent an email to Operations Director as to what had happened.

Non- Appointment to the Supervisor’s role in August 2021.

The witness telephoned the complainant between the 15 and 31 July to tell him that the contract had changed; it was a new role, new duties and that they needed to interview everybody. Six of the eight got the job. The witness stated that he never told the complainant that he was to attend a welfare meeting, rather he told him that he and the Security Contracts Manager would interview him.

The complainant performed poorly at interview considering how experienced and competent that he was. He was blasé. He didn’t really engage with the interview or interviewers. The Security Contracts Manager explained to him both before the interview and at the start of the interview that there was huge difference between the role that he had previously held and the news supervisor’s role. The Security Contracts Manager notified him on 5 August that he had been unsuccessful at interview. The respondent was scared of Covid; PPE, goggles, difficulties in transferring patients form one area of the hospital to another had all to be addressed. They had to have demonstrations in PPE, in how to exercise limits with visitors to the hospital, collect contact tracing details, all of which generated new protocols.

He was not paid the supervisor’s allowance of €0.50 thereafter as he refused to take on the role of training new inductees, a function which the respondent wanted him to retain and for which he would have been paid the supervisor’s allowance.

The witness stated to the adjudicator that the respondent has 1200 employees, 80% of whom are non- Irish. They have 50 staff who are either of Pakistani or Indian origin. Companywide, they have 40 supervisors, eighty percent of whom are non- Irish.

CA-00043981-001.Complaint of constructive discriminatory dismissal.

The complainant resigned on March 4, 2021.

He never bought his issues to the witness’s attention. Had he done so, the witness would have spoken to the complainant and contacted HR about his concerns concerning retrospection. His emails to the complainant attest to that.

He never mentioned discrimination to the witness.

Cross Examination of witness.

Failure to pay retrospection on the supervisor’s allowance.

In October 2017 the complainant and Mr. P, (the supervisor absent on family leave) agreed that the complainant should take on this temporary replacement role. The witness did not tell the complainant it was temporary as it was agreed between himself and Mr. P. They came to the witness with the arrangements, and he agreed that the complainant should get the €0.50 an hour increase. The complainant did request payment of the allowance in January 2020.He passed it on to his supervisor in Head Office. It was not the witness’s job to decide on the rate. Anytime he was reminded, he followed it up

Demotion of the complainant in August 2020.

By way of explaining how the interviews for serving supervisors came about, the witness stated that it was not St James that initiated the interviews with the supervisors; but it was their altered demands as to how the role should be exercised that prompted the respondent company to conduct interviews. Contrary to what he has asserted, the complainant knew in advance of the interview of what St James expected of the respondent’s supervisors.

The witness did not conduct a welfare meeting on the complaint’s return to work on 31 July 2020 because he was not unwell and had been declared fit to resume work without any qualification at that stage.

While he did answer the questions at interview it was not in the manner expected by the witness.

The interview was the sole determinant in deciding who would function as a supervisor.

The witness stated he was not aware that the complainant was unhappy with the outcome of the interview as he made no complaints about it.

Witness 4. Security Contracts Manager’s evidence given under affirmation.

Demotion of complainant.

The witness interviewed the complainant and all of the supervisors on the 31 July 2020. Two were unsuccessful.

At no stage during the interview did the complainant disclaim knowledge of the fact that what was going on was an interview as opposed to a welfare meeting- his current characterisation of the interview.

The complainant stated that it was ridiculous that he was coming in to be interviewed for a job which he held.  Initially he refused to sit down. He was standoffish. He did not participate in the questions put to him. I was aware that he had held a supervisor’s position.

While the hospital’s own security staff have overall responsibility, the respondent company had to match them in terms of supervision.

On 5 August the complainant returned to work. The witness and Operations Manager met with the complainant. They needed a day and night training officer. The complainant knew the situation like the back of his hand. They offered him a tutor – type role, entailing the training and induction of new security officers which would attract the supervisors’ allowance. He refused. He wanted the old supervisor’s role but not the new, amended role.

Conclusion.

The respondent’s solicitor summing up stated the non- payment of retrospection for the period 2017-2019 was not satisfactory, albeit that he did receive it from 2019 onwards.

Should the complainant have a complaint, it is not one of discrimination on race or disability grounds. Eighty percent of the respondent’s staff are non-Irish. The complainant never informed the respondent that he believed he was being discriminated against on the basis of his race or disability.

In terms of any complaint against the respondent concerning the failure to provide reasonable accommodation, he was offered reduced shifts because of his health as a result of the December 2019 meeting which was set up to identify how the respondent could help him.

He had presented no evidence that anyone else has been treated more favourably.

The discharge letter from Tallaght Hospital of November 2019 is not evidence of diabetes.

A role was available for him.

It is not the employer’s fault that he did a bad interview. The job changed in December 2020 due to the onset of Covid-19.

The difference in treatment concerning paid sick leave provisions was governed by an ERO.

The complainant was facilitated and permitted to work on a two day week. The respondent accepted his request to remain out of work from April to August 2020. His request for the respondent to sign casual dockets was refused as it was unlawful; there was work available.

The respondent asks the adjudicator to find in their favour.

CA-00040393-001. Complaint under section 77 of the Employment Equality Act, 1998

I am required to adjudicate on the following matters:

If the Complainant was subjected to discriminatory treatment on the grounds of race in relation to his conditions of employment when

           he was denied retrospection on the supervisor’s hourly allowance for the period

           October 2017- July 2019 and in this way was treated less favourably than an Irish

           colleague,

          he was treated less favourably than an Irish colleague concerning paid sick leave 

           benefits during the period 5 November 2019 – February 2020,

           and

         he was demoted on 5 August 2021 on the grounds of race and disability.

Non-payment of allowance for supervisor’s allowance for the  period October 2017- July 2019.

The last instance of discrimination occurred in July 2019 when the respondent failed to pay him the supervisor’s rate of pay. It is accepted that he received it thereafter. This complaint was lodged on 13 October 2020 which is over a year beyond the failure to pay him the supervisor’s allowance due to what the complainant attributes is his race.

Section 77(5)(a) of the Acts dictates that the only admissible incidents grounding the complaint of discrimination are those that occurred in the six months prior to the submission of the complaint, that period being the 14 April 2020- 13 October 2020.  However, in Hurley v County Cork VEC (EDA 1124), the Labour Court noted that Subsection (5) and subsection (6A) of s.77 deal with different forms of continuing discrimination or victimisation and held that

 “Subsection (5) of s.77 deals with a situation in which there are a series of separate acts or omissions which, while not forming part of regime, rule, practice or principle, are sufficiently connected so as to constitute a continuum.”

In order for the respondent’s failure to pay the complainant retrospection to be considered part of a continuum with the instances of discrimination occurring within  the statutory period,  the complainant must, in addition, meet a further requirement as set out in Cork County VEC v. Hurley EDA 24/2011 and County Dublin VEC v. Dodo EDA1327/2013, both of which held that a discriminatory act must have occurred within the limitation period in order to consider those acts occurring outside of the statutory period. Therefore, I must decide if the acts of alleged discrimination occurring between 14 April 2020- 13 October 2020 constitute discrimination on the grounds of race and permit, thus, the inclusion of acts occurring outside of the statutory period (the non-payment of the supervisor’s allowance from October 2017- July 2019.)

Less favourable treatment on the grounds of race occurring within the statutory period.

Demotion of complainant on 5 August 2020.

This complaint was included in the complaint submitted in October 2020

It is accepted that the complainant was informed on 5 August 2020 that he was unsuccessful at the interview on 31 July for the revised supervisor’s position. He was offered a hybrid role which contained some supervisory duties such as training inductees, a role which maintained  his supervisor’s allowance.

Relevant Law.

Section 6(1) of the Employment Equality Acts provides that discrimination shall be taken to occur 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 grounds specified in subsection (2)”.

Section (2) provides

“As between any 2 persons, the discriminatory grounds (and the descriptions

of those grounds for 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”).

Burden of Proof.

 Section 85A of the Employment Equality Acts 1998-2015 lays the onus of proof with the complainant to establish a prima facie case of discriminatory treatment contrary to the Acts. Section 85A of the Acts provides that facts must be

“Established by or on behalf of a person from which it may be presumed that prohibited conduct has occurred in relation to him/her”

In the case of Teresa Mitchell v Southern Health Board (Cork University Hospital) AEE/99/8, [2001] 12 E.L.R. 201 the Labour Court concluded 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 respondent to prove that there was no infringement of the principle of equal treatment. Applied to the present case, this approach means that the appellant must first prove as a fact one or more of the assertions on which her complaint of discrimination is based. A prima facie case of discrimination can only arise if the appellant succeeds in discharging that evidential burden. If she does, the respondent must prove that she was not discriminated against on grounds of her sex. If she does not, her case cannot succeed.”

In order to satisfy to show that a prima facie case exists, the complainant is obliged to satisfy three elements of a test laid out in In Minaguchi v Mr. Ray Byrne, T/A Wineport Lakeshore Restaurant DEC-E/2002/20 and in other decisions. They are:

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

- That s/he has been subjected to specific treatments; and

- 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.”

Application of law to the circumstances of the instant case.

Applying the above provisions, the complainant is covered by the protected ground by virtue of section 6(2) (h) of the Employment Equality Acts 1998-2015 in that the complainant, born in Pakistan, is of a different race or ethnicity to his comparator, Mr K, an Irish person, appointed to the revised supervisor’s role.

The complainant was subjected to specific treatment in that he was denied the opportunity to retain a reconstructed supervisor’s role.

The treatment was less favourable to that afforded to his comparator. The supervisor’s job offered to the complainant had less responsibility that that offered to his Irish comparator, a person not covered by the relevant discriminatory ground.

 In O’Higgins V UCD 2013, EDA 131, the Labour Court in varying the decision of the Equality Tribunal that the complainant had not made out a prima facie case of discrimination held that

 “It is not necessary to establish that the conclusion of discrimination is the only or the most likely explanation which can be drawn from the proven facts. It is sufficient if it is within the range of presumptions that can be properly drawn”

I find that the complainant has raised an inference of discrimination. The onus therefore moves to the respondent to rebut the presumption of discrimination.

The respondent’s rebuttal of discrimination.

The arrival of Covid-19 generated a lot of changes for security staff and the role had to adapt to these changes.

All serving supervisors assigned to St James, 40% of whom are non-Irish, had to submit to an interview for what the respondent called the revised position of supervisor in the hospital in order to retain their position. Two of the interviewees, serving supervisors, were not selected. Two of the six appointed were non-Irish.

The uncontested evidence is that of the 1200 companywide employees, 80% are non- Irish. The uncontested evidence is that 40 of its staff, companywide, occupy the position of supervisor and approximately 80% of this group are non-Irish.

The respondent told staff including the complainant about the need for an interview and when it would occur.

The comparator chosen by the complainant went through the interview as well. The complainant did not contest the respondent’ s evidence that he was resentful of having to be interviewed and that he resisted engaging with the interview.

He was offered some of the duties of duties of a supervisor and the supervisor’s allowance. The respondent stated that the complainant wanted the old unreconstructed pre- covid role, not the role amended very significantly due to the arrival of Covid-19.

Did the respondent rebut the inference of discrimination?

I accept that the advent of Covid-19 generated a lot of changes for security staff and that the role had to adapt to these changes more particularly in a hospital setting.

 The complainant’s case is that he, a non – national, was needlessly interviewed for a position which he had held, and in which he had been successful, was ‘deselected’, but was offered a hybrid position unlike his Irish colleague who was offered the reconstructed supervisor’s role is all evidence, per se, of discrimination on grounds of race. The complainant did not submit any other evidence of what was put to him at interview. Whether the decision to interview serving supervisors and ’de-select’ two of them was reasonable or fair is not relevant. But this pool of interviewees contained Irish and non- Irish employees. The complainant was unsure about what he had been told about the interview prior to it happening, but the respondent’s evidence was unambiguous in that he told staff including the complainant in the last two weeks in July about the upcoming interview and the basis for the interview scheduled for the 31 July 2020.

Concerning his failure to secure the reconstructed role of supervisor, the Labour Court in Margetts v Graham Anthony and Company Ltd EDA 038 stated that mere membership of a protected class is insufficient to raise an inference of discrimination. An additional element is required;

“The complainant must adduce other facts from which it may be inferred on the balance of probabilities that an act of discrimination occurred”

The complainant is obliged to demonstrate that in addition to his protected status, the less favourable treatment of which he complains is attributable to his race. The complainant focussed on the fact that he was non-Irish.

I find on the basis of the evidence that it was the complainant’s resentment at having to be interviewed, his, at best, half-hearted engagement with the process and lack of commitment to the revised role that saw him fail to be offered the reconstructed supervisor’s role

 I do not find that his race was therefore relevant to the decision to demote him. 

 I find that the respondent has rebutted the inference of discrimination on the grounds of race.

I therefore do not uphold this complaint of discrimination in terms of section 6(2)(h) of the Acts.

Having found that this does not constitute an act of discrimination against the complainant on grounds of race, I find the failure to pay him retrospection for the period October 2017 – July 2019 July to be inadmissible and cannot be saved by section 77 (6)(A) and this is apart from the connectedness or otherwise of the failure to pay him the supervisor’s allowance to his failure to retain the supervisor’s post.

Complaint of discrimination on grounds of race in that the complainant received less favourable sick leave benefits than his comparator.

The complainant was on sick leave from 5 November 2019 to February 2020 due to a stroke. He was paid the ERO rate for 5 weeks. The complainant’s evidence was that a named Irish comparator was paid his salary for 2- 3months during this same period whereas the complainant received disability benefit.  

The complainant returned to work on a part time basis on a two-day week until April 2020 whereupon his doctor advised him to remain at home due to the risk to his health from Covid-19. This he did.

The same problem arises for the complainant with this specific complaint in that the less favourable treatment occurred outside of the statutory period which ran from 14 April to 13 October 2020.

I have not upheld the complaint of discrimination occurring within the statutory period. I therefore cannot include the different leave arrangements as being part of a continuum.

 In addition to this conclusion, the uncontested evidence is that the comparator enjoyed paid sick leave courtesy of S.I. No. 231 of 2017 (Personal Attack Benefit) which provides for 26 weeks full pay in the event of a workplace attack. All other employees, Irish or non- Irish were limited to a maximum of five weeks sick pay. The difference in treatment relative to his comparator is unrelated to the complainant’s race.

I find that the complainant has failed to establish a prima facie case of discrimination on grounds of race concerning the paid sick leave provisions and his complaint of discrimination on grounds of race cannot succeed.

Complaint of victimisation.

This was included in the complainant form submitted to the WRC.

In the instant case the complainant’s only evidence at the hearing of having made a statement to the respondent characterising the failure to permit the complainant to maintain his supervisor’s role as an act of discrimination occurred after he was told of the demotion

 Relevant Law.

Section 74(2) of the Acts sets out the protected acts that may trigger a retaliatory or act of victimisation by the employer.

In the case of Tom Barrett v Department of Defence, the Labour Court set out the three components which must be present for a claim of victimisation under Section 74(2) of the Acts to be made out.

“(i)the Complainant must have taken action of a type referred to at paragraphs (a)-(g) of Section 74(2) – what it terms a “protected act”,

(ii) the Complainant must be subjected to adverse treatment by his/her employer and

(iii) the adverse treatment must be in reaction to the protected act having been taken by the Complainant.”

In the instant case the complaint of having been discriminated against occurred after the demotion and this adverse treatment was therefore “not in reaction to “ the representation made to the respondent, but rather preceded it.

Applying the law and the authorities to the fact of this case, I find that the complainant has failed to establish facts from which victimisation within the meaning of Section 74(2) of the Acts can be inferred. Accordingly, I find that the complainant is not entitled to succeed in respect of this element of his complaint of the Acts.

Complaint of discrimination on grounds of disability in the respondent’ failure to retain the complainant in the position of supervisor.

Relevant Law.

 An employee is protected against discrimination on the grounds of disability by virtue of section 8 of the Acts in terms of

(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,

The complainant did not retain his position of supervisor which he believes was due to him having a disability in that he had been out sick for a period prior to the reorganisation of the supervisor’s role. and that he was being treated for diabetes.

Disability’ is defined for the purposes of this legislation as: -

(a) the total or partial absence of a person's bodily or mental functions,

including the absence of a part of a person's body,

(b) the presence in the body of organisms causing, or likely to cause, chronic

disease or illness,

(c) the malfunction, malformation or disfigurement of a part of a person's

body,

(d) a condition or malfunction which results in a person learning differently

from a person without the condition or malfunction, or

(e) a condition, illness or disease which affects a person's thought processes,

perception of reality, emotions or judgement or which results in disturbed

behaviours.

 In order to progress this complaint to the point of a finding that the complainant has established a prima facie case of discrimination, the complainant must satisfy the three elements set out in the Minaguchi test:

“that s/he is covered by the relevant discriminatory ground(s);

that s/he has been subjected to specific treatments; and

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.”

Applying these criteria to the evidence before me, the medical evidence in the form of medical certificates submitted by the complainant’s GP merely states that the complainant was unfit for work during the period 3/4/20- 5/8/20 due to medical reasons and does not refer to diabetes. The GP’s letter of 24/7/2020 declaring the complainant fit to resume work on 5 August 2020 makes no recommendations to any accommodation or adjustments to his role.

The medical evidence submitted does not conform to the requirements and definition of a disability set out in section 2 of the Acts.

Aside from this point, the complainant’s own evidence was that his named comparator who had been out on sick leave for a similar period to himself retained his supervisor’s role.

The complainant cited the Supreme Court decision of Nano Nagle School v Daly [2019],IESC 63 where in considering Section 16 of the Employment Equality Act, the Court found that the obligation on an employer is to consider all appropriate measures which could be undertaken to provide reasonable accommodation and  costs related to such accommodation before determining whether or not that accommodation can be made.

But the complainant in the instant case was declared fit to resume work, full time on the 5 August 2020. The complainant made no case to the respondent nor to the hearing as to how the supervisor’s role should have been adjusted so as to accommodate any disability.  He identified no elements of the supervisors’ role which were difficult for him to perform because of any disability.

The uncontested evidence is that the respondent facilitated the complainant by permitting him to work 2 days a week when he was recovering from a stroke during the November 2019- February 2020 period. 

I do not find that the complaint has made out a prima facie case of discrimination on the grounds of disability.

 CA-00040393-00.    Complaint of constructive discriminatory dismissal under section 77 of the Employment Equality Act, 1998

I am obliged to establish whether the Complainant was constructively discriminatorily dismissed from his employment on 4 March 2021.

The Labour Court determined in the case of An Employer -v- A Worker (Mr. O No. 2)[3] that the definition of dismissal contained in Section 2(1) of the Unfair Dismissals Acts 1977 applies in cases of constructive discriminatory dismissal. Section 2(1) defines “dismissal” as including:

"the termination of a contract of employment by an employee (whether prior notice of termination was or was not given to the employer) in circumstances which, because of the conduct of the employer, the employee was or would have been entitled to terminate the contract, without giving such notice, or it was or would have been reasonable for the employee to do so .... ".

It held that the "contract" test and the "reasonableness" test were applicable tests to be used in complaints of constructive discriminatory dismissal. 

Section 8 of the Acts specifically prohibits the dismissal of an employee on discriminatory grounds, as follows:

“(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) n/as

(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,

or classes are or would be employed as the employer offers or affords to another person or class of persons, where the circumstances in which both such persons are not materially different”.

This is not a complaint under the Unfair Dismissals Act 1977 but rather a complaint under the race and disability provisions of the Employment Equality Acts, 1998-2015.  A precondition for establishing that the complainant was constructively discriminatorily dismissed is that the respondent’s actions towards him were so intolerable as to compel him to resign but intolerable because those very actions, or at least some of them, were less favourable than those meted out to comparators not within any of the  protected grounds  identified in the Equality Acts, and are actions which  are  found to have been  in breach of any of the 9 protected grounds  identified in the Acts. It has to be these acts of discrimination which compelled him to resign.

While I accept that the complainant had a very legitimate complaint, tried to resolve the matter of retrospection, and note the respondent’s admission that they were at fault in their tardy lack of response in paying him the allowance, this is not a complaint under the Unfair Dismissals Acts 1977, or the Payment of Wages Act 1991 and I must examine the employer’s actions within the confines of the Employment Equality Acts 1998-2015.

Similarly, the fact that he did not retain his position on July 31 2021 is obviously a serious blow to the complainant, but, again, I have not found this to be evidence of discrimination on either race or disability grounds. Accordingly, I therefore cannot find that the complaint was constructively discriminatorily dismissed from his employment on 4 March 2021.

CA-00043981-001. Complaint under section 77 of the Employment Equality Acts, 1998-2015.

I do not find that the complainant was discriminated on the grounds of race in terms of section 6(2)(h) and contrary to section 8 of the Employment Equality Acts.

I find that the complainant failed to raise an inference of discrimination on the grounds of disability in terms of section 6(2)(G) and this complaint cannot succeed.

 I find that the Complainant has failed to establish facts from which victimisation within the meaning of Section 74(2) of the Acts can be inferred. Accordingly, I find that the Complainant is not entitled to succeed in respect of this element of his complaint.

CA-00043981-001 Complaint under section 77 of the Employment Equality Act, 1998.

I do not find that the complainant was constructively discriminatorily dismissed by the Respondent contrary to Section 8 of the Acts.

Complaint of discrimination on grounds of race and disability not upheld.

Constructive discriminatory dismissal.