Complainant

Respondent

Parties

Catherine  Igbrude

Endoval Limited

Representatives

Jim Winters Citizens Information Service

Thomas Ryan Peninsula

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-00048005-001

06/01/2022

On or about the 7th of September 2021 the Complainant begins a new job with the Respondent Company as a technical manager -microbiology. The Company provides testing services to the Healthcare sector and has been built up to be a successful business over a 15-year period. The owner of the business is a non-national, and the company operates to very specific quality testing standards based on best practice that are subject to independent audit. The Complainant negotiated a strong package with the owner who described it as being the most he paid any employee.

There is a conflict between the parties concerning statements made during work discussions. Both the respondent employer who is managing director and the Complainant gave sworn evidence. There are no witnesses to any of the alleged discriminatory remarks attributed to the Managing Director.

There are two conflicting accounts about what occurred. The MD stating that the Complainant did not meet the expectations he had for an experienced microbiologist and there were specific incidents of shortcomings totally related to her work. There was also an interpersonal difficulty where the MD believed that the Complainant was less than respectful to him as owner and General Manager of the business.

The Complainant stated that the MD on two separate occasions stated that although she was black, he had paid her more than anybody else.

The Respondent stated he never made any such remark; the Complainant decided not to attend a review meeting which was likely to end her contract after two months of employment, solely relating to her performance and fit. That meeting did arise in the context of a conversation with the Respondent where she inferred that she was being overworked.

The Complainant stated that her job changed within a very short time of joining the Company. A key person left the Company, and that work was allocated to her. Approximately within 2 weeks of commencing employment she was taken aback by a comment made by the MD that ‘I pay you more than anyone else and you are even black.’

An issue arose about her workload and again the MD mentioned her colour and that he paid her more than anyone else.

The Complainant found that the demands being placed on her were excessive and this did result in an acrimonious exchange between her and the MD, where the MD stated that he would be letting her go.

The Respondent stated that the employee was on probation and some very basic mistakes were being made relating to collecting samples; breaking a pipette; inaccurate figures in test results.

The Respondent did state that he did refer to the Complainant to  being well paid, a salary that she had negotiated and which he believed was justified based on her experience. Unfortunately for whatever reason the Complainant did not perform to the expected level based on her experience and qualifications. He never made any reference to her colour or race.

The Respondent has stated that the Complainant cannot succeed as she as identified no comparator. I note that Regan in Employment Law 2nd Ed Bloomsbury states:

Definition of ‘discrimination’

[17.12]

The Employment Equality Act 43 has a broad scope of application. Discrimination is defined as occurring where: 44

(a)a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as ‘discriminatory grounds’) which –

(i)exists,

(ii)existed but no longer exists;

(iii)may exist in the future, or

(iv)is imputed to the person concerned,

‘Less favourable treatment’ is more commonly known as ‘direct discrimination’ although that particular phrase is not used in the Employment Equality Act. In general, a complainant must prove less favourable treatment as compared with another person in a similar position to the complainant. If a complainant is unable to demonstrate that the chosen comparator/s were treated less favourably, if for example all employees were treated equally poorly or unlawfully, (45) the claim of discrimination will fail. The wording of s 6 ‘would be treated’ allows for the use of hypothetical comparators in appropriate circumstances of alleged discriminatory treatment, other than in relation to equal pay where an actual comparator is required. (46)

I note Bolger, Bruton and Kimber in Employment Equality Law 2nd Ed, Round Hall state:

Direct discrimination

1-07

Identical treatment is encapsulated in the concept of direct discrimination. It applies the formula that like should be treated alike or at any rate not treated differently on a protected ground. As one writer puts it:

“According to the provisions of the Equality Directives direct discrimination occurs where one person is treated less favourably on grounds of prohibited criterion (racial or ethnic origin, religion or belief, disability, age, sexual orientation or sex) than another is, has been or would be treated in a comparable situation. Thus, it relates to the disadvantageous treatment based on the possession of specific characteristics which distinguish an individual from other people. It is therefore necessary to determine a comparator e.g. a male worker, and a compared situation, which may be either past, present, or even hypothetical.”12

In order to decide whether a complaint of discrimination is well founded, a tribunal or Court will first seek to identify a comparator, either real or hypothetical, by reference to whether that individual was treated less favourably. While under Irish law, the comparator must generally be a real person to whom the complainant can point, but may also be  hypothetical, European law appears to allow  hypothetical  comparators.13 An exception to the need to identify an actual  comparator has been made for pregnancy, where more recent jurisprudence has seen a move away from the need to find a sick man as a  comparator.14

Section 6 of the Employment Equality Act 1998 as amended provides for a hypothetical comparator:

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,

The Complainant is alleging that the Respondent stated that even though she was black she was paid more than others. That must mean that black people normally would not be paid more than others of a different race or colour. The meaning to be given to even though you are black is offensive and discriminatory. Race does not constitute a criterion to determine compensation. However, the claim is not of harassment on the ground of race rather it is claim for discriminatory dismissal.

Race ground under the Act means:

(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”),

I am satisfied that the Complainant has met the test and the comparator is a hypothetical comparator and an employee who is not black, who is of different race, colour, nationality or ethnic or national origin who would not be held to the same standard of performance during a probationary period.

The Complainant initially carries the burden of proof to establish a prima facie case of discrimination. It is being alleged that discriminatory dismissal has occurred in this case.

I note the recent Circuit Court case Board of Management v a Father [Record No. 2021/004838] where O’Connor J cited a Supreme Court case as a reference for what this means:

24. In the Supreme Court decision of Nathan v Bailey Gibson [1998] 2 IR 162, a case involving discrimination on the grounds of gender in the workplace, the Court held at page 178:

“In such a case the worker is not required, in the first instance, to prove a causal connection between the practice complained of and the sex of the complainant. It is sufficient for him or her to show that the practice complained of bears significantly more heavily on members of the complainant's sex than on members of the other sex. At that stage the complainant has established a prima facie case of discrimination and the onus of proof shifts to the employer to show that the practice complained of is based on objectively verifiable factors which have no relation to the Plaintiff's sex.”

A Complainant must establish a prima facie case based on facts of significance that may give rise to a presumption of discrimination.

The Labour Court in several determinations have repeatedly emphasised that the facts must be significant to give rise to such an inference of discrimination and in a recent case Public Appointments Service and Mr Bernard Lester (EDA 2022) the Court detailed what this meant

Discussion and Decision

Section 85A (1) of the Act provides as follows in relation to the burden of proof on a Complainant who alleges discriminatory treatment contrary to the Act:

“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.”

This Court – in its determination in Southern Health Board v Mitchell [2001] ELR 201 – considered the extent of the evidential burden imposed on a Complainant by section 85A and held:

“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 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 is no infringement of the principle of equal treatment.”

It follows that a complainant has to establish both the primary facts upon which he or she relies and also that those facts are of sufficient significance to raise an inference of discrimination. In Cork City Council v McCarthy EDA 21/2008, this Court stated in this regard:

“The type or range of facts which may be relied upon by a complainant may 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 Melbury Developments Ltd v Valpeters [2010] ELR 64, however, the Court stated that “mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn”.

The complaint as articulated is that the Complainant’s manager stated even though you are black you are on a higher salary. Based on this remark the Manager was judging the Complainant’s work performance more harshly than someone who was not of the same race, or the manager made a statement that would be described as harassment.

The difficulty in this case relates to the fact that both the Complainant and Respondent rely on their own testimony to establish facts to prove or rebut the allegation of discrimination. There is no corroborating statement or complaint about this behaviour when the employee was working at the Company.

It is being alleged that because the Complainant was black a different standard of performance was being used to determine if she was suitable or unsuitable for the role.

The evidence shows that there were performance issues during the probationary period. There were legitimate concerns about the Complainant’s use of basic testing equipment and about the accuracy of her work.

When the Complainant leaves her employment, she sends a text wishing all her former colleagues well.

The Complainant carries the prima facie burden to raise an inference of discrimination. This must be based on primary facts that show that discrimination is a possibility. The facts relied upon by the Complainant are alleged discriminatory remarks made by her MD. There is no record or evidence provided at the hearing that when the alleged remarks were made or even soon after that the Complainant stated that a line had been crossed by such offensive and discriminatory remarks being made. However, she did take issue with her workload and what was expected from her during her period of employment and raised this issue with the MD. She did state that her manager was not helping her with this excessive workload. There were candid conversations between both the Complainant and the MD about workload and the quality of her work.

The MD is a non-national, and 3 employees (an office manager also a non-national and two technicians) gave evidence that they never had experienced any discrimination at the workplace.

The MD stated that he hired the Complainant, and it is not credible that he would then make racist and discriminatory comments about her race/colour was a factor in determining her performance or salary. He paid her based on her qualifications and experience.

There is compelling evidence that there were performance issues during the probationary period and also interpersonal difficulties between the MD and the Complainant relating to the comments being made to him about his workload and output.

This is a case where the factual matrix must be considered to assist in determining whether the Complainant has established a prima facie case.

 It is more probable based on the facts that the Complainant’s performance and fit was an issue for the Managing Director after 2 months of employment. While the Complainant alleges that she was discriminated on the ground of race it is more likely that she would have been let go because the MD did not believe she was doing a good job and they did not get along. This complaint is not about the fairness of that likely decision as the Complainant left before that outcome was confirmed, rather it is about determining if there are facts established that give rise to a prima facie case of discriminatory dismissal in the first place:

I say the respondent treated me unlawfully by discriminating against me in Dismissing me for discriminatory reasons

In plain language have facts been established to show that the practice complained of bears significantly more heavily on members of the complainant's race

The Complainant has not established primary facts of significance that would shift the burden based on her own evidence that there were serious differences between her and her MD about her work, and those differences were not related to her race. The differences related to the quality and output of her work.

An employer has a considerable discretion during a probationary period to decide if the employee should be made permanent. In Donal O’Donovan v Over-C-Technology Limited and Over-C Limited [2021`] IECA 37the Court of Appeal affirmed the right to dismiss based on poor performance during the probationary period.

The Complainant carries a burden of proof to show that because of her race there are practices that show she may have been treated differently to others. The period of employment in issue is 2 months. During that period there were performance issues.

Has the Complainant established some facts that show that because of her race she may have been treated differently to others about how she was reviewed. It is true that the process was predominantly based on one-to-one conversations during work. However, based on sworn evidence the facts show that there were performance concerns and that the Complainant had made mistakes during the first 2 months of her employment.

The test that I must apply is based on the balance of probabilities has the Complainant established facts that tend to show that because of her race she was treated less favourably to others of a different race or colour. There is no contemporaneous note or record of surprise regarding any of the 2 alleged incidents that are now relied upon to ground this complaint. There is no account of a reaction and escalation at the time the remarks were made. The allegations are situated in a conversation about workload and performance.

The Primary Facts established at the hearing are that there were performance issues about the use of basic testing laboratory equipment; inaccuracies in reports to be sent to customers and omissions to collect samples for testing and that there were interpersonal difficulties between her and the MD. Finally, the Complainant left the Company and sent a message to all her colleagues wishing them well. I find that the Complainant has not established facts that give rise to a presumption or inference of discriminatory dismissal based on these facts.

In these circumstances I find that the Complainant was not discriminated on the ground of race and dismiss the complaint. The complaint is not well founded.

This is the case where the factual matrix must be considered to assist in determining whether the Complainant has established a prima facie case. It is more probable based on the facts that the Complainant’s performance and fit was an issue for the Managing Director after 2 months of employment. While the Complainant alleges that she was discriminated on the ground of race it is more likely that she would have been let go because the MD did not believe she was doing a good job and they did not get along. This complaint is not about the fairness of that likely decision as the Complainant left before that outcome was confirmed, rather it is about alleging:

I say the respondent treated me unlawfully by discriminating against me in Dismissing me for discriminatory reasons

The Complainant has not established primary facts of significance that would shift the burden based on her own evidence that there were serious differences between her and her MD about her work, and those differences were not because of her race. The differences related to the quality and output of her work. In these circumstances I find that the Complainant was not discriminated against on the ground of race and dismiss the complaint. The complaint is not well founded.

Race- Discrimination-Discriminatory Dismissal