ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00035446

Parties:

Complaint:

Date of Adjudication Hearing:  23/09/2022

Workplace Relations Commission Adjudication Officer:  Aideen Collard

Procedure:

This complaint was referred under Section 77 of the Employment Equality Acts 1998-2015 to the Workplace Relations Commission (hereinafter ‘WRC’) on 6th October 2021.  Following delegation to me by the Director, I inquired into this complaint and gave the Parties an opportunity to be heard and to present any relevant evidence.  I heard this complaint by remote hearing on 23rd September 2022 pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and S.I. 359/2020.  The Complainant was represented by Seamus Collins BL instructed by Sean Ormonde & Co., Solicitors and the Respondent was represented by Hugh Hegarty of Management Support Services (Ireland) Ltd.  Several witnesses appeared on behalf of the Respondent.  Two other complaints referred, CA-00046556-002 and CA-00046556-003 were withdrawn.  Both Parties proffered comprehensive written submissions and documentation.  This hearing was held in public pursuant to Section 79(2) of the Employment Equality Act 1998, as substituted by the Workplace Relations (Miscellaneous Provisions) Act 2021.  The Parties were made aware that their names would be published within this decision.  There was a Hungarian interpreter present but was not required to translate as the Complainant had a good command of English.  All of the evidence was heard under oath/affirmation.  As the Complainant bore the burden of proof, he gave his evidence first.  All of the evidence, documentation and submissions proffered have been fully considered.

Background:

The Complainant is employed by the Respondent as a Security Guard.  He referred a complaint of discrimination on the ground of race based upon his Hungarian nationality against the Respondent contrary to Section 6(2)(h) and 8(1)(b) of the Employment Equality Act 1998.  It was contended that the Complainant had been suspended (on full pay) and subject to a workplace investigation whilst his counterpart, an Irish national had not, thereby establishing a prima facie case of discrimination which had not been rebutted.  Compensation was sought for the alleged discrimination.  On behalf of the Respondent, it was submitted that there were other factors at play explaining why only the Complainant had been suspended and investigated and hence no prima facie case of discrimination.

Summary of Complainant’s Case:

Non-controverted Background Information

Since 1st April 2020, the Complainant, a white Caucasian of Hungarian nationality, has been employed as a Security Guard by the Respondent who provide integrated facilities management services including security.  He was employed on the site of a Pharma Company (the Respondent’s Client).  The Complainant earned €1,900 per month.  He had worked on the same site alongside Mr A (also a foreign national) for the Respondent’s predecessor for several years previously.  At the time of this complaint, Mr A was the Complainant’s Supervisor, and they worked most shifts together.

Following a complaint by the Client about food dumping on its site, Mr A provided a statement dated 15th January 2021 to Management.  It accused the Complainant and another employee of Irish nationality, Mr B, of dumping food on the site to feed a fox known to frequent the premises as follows (including non-material corrections and redactions): “Issue: Food Dumping  1 - Most of the food (the Complainant) bring the food to the site all the time, I talk to him several times, but he didn’t follow the rules and he still bring, I talk to him about it on the 03/06/2020.  2 - On the 15/07/2020, we talk about it again, and twice in 2018 because he was putting the Animal’s food in the fridge and make smell and contamination of our food, he stopped for a few weeks.  3 - After I check the issue of dumping food on 23/12/2020 near the security gatehouse base on the report sent to me by Management on the 11/01/2021, I find out that, on 23/12/2020 at 22:35pm, (the Complainant) arrived on-site, he was off but he came to bring food for the fox.  After that he dump the food outside on the floor near the gatehouse, a few minutes after (Mr B) dump more food in the same place.  I talk to him last week on the 05/01/2021 at 7:00am - he start to argue about it, I explain to him that it could bring mouse’s on-site and other animals and (the Client) will not be happy about it.  On the 10/01/2021 at 10:10am I informed him to stop dumping the food, he asks who complain I said Management are not happy - he said, yeah go report me and tell them it was me, all the time argue again.  So I left and went to do my patrols.”  Although the veracity of the contents was disputed, it was common case that this statement had instigated an investigation into the Complainant’s role.

At the time, the Complainant had been off work and when he was due to return, the Contracts Manager, Ms C, telephoned him to inform him that he was suspended on full pay as confirmed in a letter of 28th January 2021.  After a period of eight weeks, he was called to an investigation meeting on 9th April 2021 with an Associate Director, Mr D, who issued a Report.  He was then called to a disciplinary meeting with the Regional Security Manager on 28th April 2021.  He received a verbal warning by letter dated 14th May 2021.  He appealed and the warning was initially upheld but was ultimately withdrawn on 1st June 2021 by the Director of Facilities.  After a period of four months’ suspension, the Complainant returned to work on the Client’s site where he has remained since.

Direct Evidence of the Complainant

The Complainant outlined the circumstances giving rise to this complaint.  Along with his colleagues on the security team, he had been feeding a fox who frequented the site of the Pharma Company (‘the Client’) where he was based for several years.  He referred to the fox as a ‘mascot’ who was regarded fondly by the team.  There had been no issue with this practice until early January 2021, when Mr A had first told him to stop feeding the fox because Management had raised an issue.  The Complainant had communicated this direction to the night-shift workers.  Thereafter, he was off work for a period of three weeks.  When he was due to return, he received a phone call from Ms C, a Contracts Manager informing him that he was suspended and not to return to work or speak to his colleagues.  This was followed by a letter dated 28th January 2021 confirming his suspension on full pay pending a workplace investigation in relation to the following allegations: “- Failure to follow Management instruction on more than one occasion - Failure to obey the site’s Pest Control SOI - Breach of trust with Management - Putting the relationship with the Client in jeopardy.”  The letter stated: “Your paid suspension does not constitute disciplinary action and does not imply any assumption that you are guilty of misconduct.”  The letter further confirmed: “The Company will be in contact with you as soon as possible to arrange for an investigation meeting to take place.  Prior to this meeting you will be provided with opportunity to review any information which has been gathered in the course of the investigation.  In the meantime, you are instructed not to enter any premises, which is part of (the Respondent) nor should you contact any member of staff employed by the Company unless you have my express permission.”  It further advised that “these allegations would be considered gross misconduct per company disciplinary policy and this investigation may result in disciplinary action being taken against you up to and including dismissal.”  Ms C’s number was provided for any queries and the Company’s disciplinary procedure was enclosed.  None of this had been relayed in Ms C’s telephone call and he had been very distressed by receipt of the letter.

The Complainant was called to a remote investigation meeting with an Associate Director, Mr D, on 9th April 2021 which he attended with his Union Rep.  Ms C was the notetaker and the minutes submitted were not in issue.  Throughout the investigation process and at this hearing, the Complainant maintained his position that he had been unfairly selected for the investigation when at least six other staff had been feeding the fox for several years.  He had first been told to desist by Mr A in early January 2021 which he had relayed to his other colleagues.  He had not been in work again before Mr A’s statement of 15th January 2021 implicating him and Mr B.  He had ceased storing the food for the fox in the staff fridge when that had been raised as an issue previously.  He contended that Mr B had undertaken identical training but had not been suspended or investigated.  Although he had signed off on numerous workplace training courses, he denied ever undertaking Pest Control training relating to feeding animals.  At the conclusion of the meeting, it was noted that his Union Rep had raised various points including the following but no response had been recorded: “(Mr B) was mentioned in the statement was he also suspended/investigated:  (The Complainant) was unfairly suspended, unfairly picked for suspension;  As a general point; this is very disturbed what happened to our member, he is under serious stress, member who want to be good in his job”. 

The Complainant was called to a disciplinary meeting with the Regional Security Manager on 28th April 2021 which he attended with his Union Rep.  Ms C was the notetaker and the minutes submitted were not in issue.  The meeting covered the same ground, and the Complainant maintained his position as set out above.  He was asked again about the Pest Control training he had received and shown a document containing his signature confirming that he had received such training.  He accepted that he had signed the document but maintained that the training related to the treatment of waste and not feeding animals.  Both the Complainant and his Union Rep had again questioned why none of the other employees who had fed the fox were being investigated.  The minutes record his Union Rep asking at the end of the meeting: “Why was nobody else investigated.  He was selected for unfair treatment.  Other was mentioned in the statement but wasn’t selected.”

The Complainant was issued with a verbal warning to be in force for a six-month period as confirmed in a letter dated 14th May 2021 based on a finding that he had admitted to feeding the fox having undergone Pest Control Procedure training. Although the Complainant had been permitted to return to work in his existing role on the Client’s site, he was still concerned about the security of his future employment with the Respondent.  He maintained his position that he had not done anything wrong and appealed the decision to issue him with a verbal warning.  The warning was initially upheld by the Director of Facilities.  The Complainant emailed back reiterating his position, stating that he had previously been unaware of the connection between feeding the fox and pest control, that the Pest Control Policy had not covered feeding animals and confirming his willingness to undergo further training.  He again complained that it was not fair that he was the only one punished when other colleagues had been feeding the fox.  The warning was withdrawn by letter dated 1st June 2021 from the Director of Facilities.  Regarding the Complainant’s assertion that he had been subjected to differential treatment it stated: “this was reviewed and differing factors were found than those in your case”. The next paragraph stated: “From the content and tone of your mails, I believe you now fully understand the potential consequences of your actions and why you are asked to be aware and sign up to the pest control procedures in the first instance.  In light of this, I will withdraw the verbal warning on your record.  Please take the time to understand and read what you are signing going forward and if unsure just ask.  I trust you will be happy with this outcome, and we can now move forward towards a positive future working as a team on site for (the Client)”.

The Complainant confirmed that he was suspended for four months waiting for an outcome of this investigation.  It was a very difficult time for him and his family.  He was concerned about the effect of the process on his reputation and other work as an interpreter.  He felt that people viewed him as a criminal even though he had done nothing wrong.  He had also found his return to work very stressful with colleagues asking questions about his suspension whilst others avoided eye contact. 

Cross-examination of the Complainant

It was put to the Complainant that he had outlined the investigation process without any mention of discrimination on the ground of race.  He was asked whether the Respondent was entitled to investigate the complaint in relation to his feeding the fox.  He replied that “everybody” was feeding the fox including Mr B, also named in the complaint but he was the only employee subject to investigation.  At this point there was an exchange regarding the date of alleged discrimination.

The Complainant clarified that the discrimination alleged arose because both he and his Irish colleague, Mr B, had been named in Mr A’s complaint as feeding the fox yet he had been singled out for suspension, investigation and a verbal warning.  He had found this very difficult and stressful as he had been left waiting for eight weeks before receiving notice of the investigation meeting.  He had encountered other difficulties with the process including having his Union Rep present and obtaining documentation / information about the allegations before the first meeting.  Other employees who had fed the fox were not treated similarly.  Consequently, he began to think that there must be another reason for this treatment.  His family could not believe that the investigation was just about feeding the fox.  It was put to him that he and/or his Union Rep had not contacted the Respondent about these issues in writing.  He responded that he was not permitted to contact any staff and had been awaiting contact from the Respondent.  The Complainant was asked whether he considered the whole process to be discriminatory including the removal of the verbal warning against him.  He replied that the warning had only been removed because he had defended himself throughout the process and he should not have been subject to the investigation in the first place.  It was put to the Complainant that during the investigation meeting, he had accepted that a complaint had been made about him keeping food for the fox in the staff fridge, and hence there was an issue before January 2021.  In response, the Complainant stated that this had been a different issue to feeding the fox.  The Respondent’s position was put to him, being that he had been suspended and investigated (1) as he had been spoken to on several occasions previously about feeding the fox and (2) he had undertaken Pest Control Procedure training whilst his Irish colleague, Mr B had not.  In response, the Complainant took issue with the veracity of the contents of Mr A’s statement.

Submissions on behalf of the Complainant

In written submissions, a detailed critique of each stage of the investigation process was set out with reference to the correspondence and minutes of same and numerous fair procedure issues were identified.  It was submitted that throughout the entirety of the process, the Complainant who was of Hungarian nationality had been treated in a less favourable, demeaning and unacceptable manner.  The Respondent had been well aware that the Complainant was not the only one who was involved in the purported misconduct.  His Irish colleagues had also stored food in the staff fridge and fed the fox.  He had repeatedly highlighted this disparity throughout the investigation process.  However, he had been the only member of staff suspended, investigated and disciplined in such a manner.  In this regard, he had been “singled out and used as a scapegoat” based upon his race.

In oral submissions, it was confirmed that this is a complaint of discrimination on the ground of race based upon the Complainant’s Hungarian nationality under Section 6(2)(h) of the Employment Equality Act 1998.  The investigation in relation to the Complainant over a four-month period commencing on 28th January 2021 and pertaining until at least 14th May 2021, when the verbal warning issued constituted less favourable treatment.  The last date of discrimination could also be taken as the date of withdrawal of the verbal warning on 1st June 2021 but in any event, it is irrelevant as this complaint was referred on 6th October 2021 so both dates are within time.  A prima facie case of discrimination pursuant to Section 85A of the Act has been established by the evidence that whilst two employees were named in Mr A’s statement, only the Complainant was investigated.  The Hungarian national was selected for investigation, whilst the Irish national, Mr B was not.  The veracity of the training records relied upon by the Respondent was questionable as they are not fully confirmative of the training and do not provide a full explanation as to why the Complainant was investigated and Mr B was not.  The training records for Mr B were not initially put forward.  The evidence of the Respondent is therefore insufficient to rebut the prima facie case of discrimination. 

Aside from the veracity of the training records, further issue was taken with the Respondent’s reason now being proffered for selecting him for investigation and not Mr B, being that the Management was aware that he had undergone Pest Control Procedure training and Mr B had not.  It was remarkable that this was only being put forward as an explanation at this juncture when it had never been included within any of the correspondence from the Respondent.  Furthermore, when the differential treatment between the Complainant and Mr B was raised at the meetings, this explanation had never been given.  Mr D had repeatedly asked the Complainant whether he had undergone Pest Control training indicating that he was unaware of his training records at the time of the investigation.  When the Complainant had questioned the differential treatment with his comparator, Mr B in email correspondence with the Director of Facilities (seeking to have the verbal warning withdrawn), she had replied: “this was reviewed and differing factors were found than those in your case”.  In the next paragraph, she had confirmed that the verbal warning was withdrawn as outlined above.  Accordingly, this was a retrofitted explanation first provided in written submissions.  It follows that the only explanation for the differential treatment was the Complainant’s nationality.  An award of compensation pursuant to Section 82(4)(a) of the Act was sought.  Whilst it was acknowledged that the Complainant had not suffered financial loss, he had suffered considerable distress during that period owing to the alleged discrimination and accordingly, an award that was “proportionate, effective and dissuasive” was sought in accordance with Citibank -v- Ntoko EED045.

Summary of Respondent’s Case:

Direct Evidence of Ms C, Contracts Manager

Ms C confirmed that she is the Contracts Manager for the Respondent since 2019.  She recalled that in January 2021, she had received a complaint from the Client about food dumping on its site accompanied with photos of the dumped food and a request that the matter be investigated.  It had been flagged that this is a serious breach for the pharma industry.  She outlined her role in relation to the ensuing investigation process which included information gathering, issuing the suspension letter and note-taking.  She explained that the rationale for suspending and investigating the Complainant and not his Irish colleague, Mr B named in the complaint by Mr A, was the fact that he had received training on Pest Control Procedure whilst Mr B had not.  The Procedure clearly stated that food was to remain within the canteen area and food dumping could attract pests which was a risk for the pharma industry.  She refuted the assertion that Complainant had been suspended and investigated because he was Hungarian and the other employee was of Irish nationality stating: “Absolutely not, I am foreign here too and I’d like to be treated the same as everybody else...” 

Cross-examination of Ms C, Contracts Manager

Ms C confirmed that she had sight of both the complaint from the Client and Mr A’s statement.  She was referred to the record of employee training including that of the Complainant submitted on behalf of the Respondent.  She was asked how she had satisfied herself that the Complainant had undergone the training on Pest Control Procedure.  She replied that she had received the records by email from the Client.  She had checked the documentation and was satisfied that the Complainant had signed-off as having undergone this training in 2019 whilst Mr B had not.  It was put to Ms C that the document submitted on behalf of the Respondent had not included the date of completion of Pest Control Procedure training for the Complainant.  She replied that the copy she had considered had included the completion dates.  Finally, Ms C confirmed that Mr B had since left the Respondent. 

Re-examination of Ms C, Contracts Manager

In re-examination, it was confirmed that the print-out of the records sent to the Complainant’s Solicitors had inadvertently omitted the dates and the correct version was confirmed by Ms C as being the document which she used to confirm that the Complainant had completed the training.

Direct Evidence of Mr D, Associate Director

Mr D confirmed that at the time of the investigation subject to this complaint, he was an Associate Director and managed the pharma area across Ireland.  He recalled undertaking the investigation meeting on 9th April 2021 with the Complainant and his Union Rep.  The Complainant had contended that “everybody” was feeding the fox.  Mr D had requested the names of the other employees who had been feeding the fox, but none were provided.  Accordingly, he had noted in his Report: “(The Complainant) mentioned that 6 or 7 other Security Officers were leaving out food for the animal also but he refused to give names in support of this claim or to give a statement on same.”  He had also confirmed that the Complainant had undergone the necessary training whilst Mr B had not.  He concluded: “From my investigation it is evident that (the Complainant) left food out for the fox on the 6th Jan 2021 and further that he did not follow related management instructions on a couple of occasions.”  He refuted the assertion that the Complainant had been investigated owing to his race.

Cross-examination of Mr D, Associate Director

Mr D was asked why he had repeatedly asked the Complainant whether he had undergone Pest Control Procedure training during the investigation meeting when he had said in his evidence that this was already an established fact.  He replied that he had put this question to the Complainant to establish the facts as part of the investigation process.  It was put to Mr D that he had not known whether or not the Complainant had undergone that training at the meeting which he refuted. 

Submissions on behalf of the Respondent

At the outset, it was confirmed that whilst the Respondent did not seek to defend the fairness of this investigation of the Complainant, it wholly refuted the contention that it was discriminatory on the ground of race.  It was contended that the Complainant had been suspended and investigated for feeding the fox (1) as he had been spoken to on several occasions previously about feeding the fox and (2) he had undertaken Pest Control Procedure training whilst his Irish colleague, Mr B had not. 

In oral submissions, it was pointed out that the Complainant had said that he did not know why he had been selected for investigation and only used the word “discrimination” when directly put to him.  The fact of the matter was that his Supervisor, Mr A, had raised a complaint against him which was investigated.  Mr A’s statement alleged that he had repeatedly failed to follow an instruction.  The matter was referred for disciplinary and the Complainant was issued with a verbal warning.  He appealed which was his right and the verbal warning was removed upon his confirmation that he would undertake the requisite training.  That is the process working regardless of race.  Whilst the Complainant contended that the delay in the investigation process had been stressful, at no stage had he alleged that it constituted discrimination on the ground of race.  The Complainant was represented and at no stage did he or his Trade Union Rep write to the Respondent complaining about the delay.  Whilst he had questioned the differential treatment between him and Mr B, for data protection reasons he had no entitlement to any information in relation to Mr B.  Whilst the Complainant was unhappy with the process which “could have been handled better”, it was not discriminatory and “just because something bad happens to you it doesn’t mean it happens because of your race”.  Accordingly, the Complainant had not made out a prima facie case of discrimination.

Findings and Conclusions:

The issue for my determination is whether the Complainant was subjected to discrimination on the ground of race contrary to the Employment Equality Acts 1998-2015 in relation to his selection for a workplace investigation.  It is necessary to firstly set out the requisite statutory provisions as follows:

Section 6(1) of the Employment Equality Act 1998 provides for complaints of discrimination on nine grounds including race as follows: “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,…”.  In relation to the ground of race, Section 6(2) provides: “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’’),…”.  Section 8(1) specifically prohibits discrimination by employers on a number of grounds including conditions of employment which would encompass an internal investigation / disciplinary process.

Section 85A(1) of the Employment Equality Act 1998 sets out the burden of proof which applies to all discrimination complaints: “Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.”  In Southern Health Board -v- Mitchell, DEE011, [2001] ELR 201, the Labour Court stated: “The first requirement is that the complainant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them.  This indicates that a 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 those 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”.

In Melbury Developments -v- Valpeters, EEA0917, the Labour Court elaborated on what was required to meet the burden of proof under Section 85A as follows: “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 must 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.”

The Labour Court also considered the burden of proof in Cork City Council -v- McCarthy EDA0821 as follows: “At this initial stage the complainant is merely seeking to establish a prima facie case.  Hence, it is not necessary for her 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 be reasonably drawn from those facts.”

In Margetts -v -Graham Anthony & Company Limited, EDA038, the Labour Court provided further guidance on the evidential burden which must be discharged by the complainant before a prima facie case of discrimination can be said to have been established as follows: “The mere fact that the complainant falls within one of the discriminatory grounds laid down under the Act is not sufficient in itself to establish a claim of discrimination.  The complainant must adduce other facts from which it may be inferred on the balance of probabilities that an act of discrimination has occurred.”

In Citibank -v- Ntoko (2004) 15 ELR 116, the Labour Court outlined the rationale for this burden of proof: “This approach is based on the empiricism that a person who discriminates unlawfully will rarely do so overtly and will not leave evidence of the discrimination within the complainant’s power of procurement.  Hence, the normal rules of evidence must be adapted in such cases so as to avoid the protection of anti-discrimination laws being rendered nugatory by obliging complainants to prove something which is beyond their reach and which may only be in the respondents capacity of proof.”  As discrimination on any ground may not be overt, careful sifting and weighing-up of the evidence is required in order to determine whether a presumption of discrimination is within the range of inferences which can be reasonably drawn from the facts established on the balance of probabilities.

Turning to the factual matrix herein, it is necessary to briefly outline the Parties respective positions.  The Complainant is employed by the Respondent as a Security Guard on a site of a Pharma Company, a Client of the Respondent.  On 6th October 2021, he referred a complaint of discrimination on the ground of race against the Respondent based upon his Hungarian nationality contrary to Section 6(2)(h) and 8(1)(b) of the Employment Equality Act 1998.  It is contended on behalf of the Complainant that he had been suspended and subject to an unfair investigation process resulting in a verbal warning, whilst his Irish counterpart, Mr B had not thus establishing a prima facie case of discrimination.  This arose from a complaint of food dumping on its site from the Respondent’s Client to Management.  Arising from same, the Complainant’s Supervisor provided Management with a statement of 15th January 2021 implicating him and his Irish counterpart in food-dumping whilst feeding a fox known to frequent the site.  This instigated an investigation into the Complainant.  Throughout the process and hearing, the Complainant maintained that he had been unfairly selected for suspension and investigation and subject to a verbal warning when at least six other staff had been feeding the fox for years.  He had first been told to desist by Mr A in January 2021 which he had relayed to his other colleagues, and he had not been in work again before Mr A’s statement.  He had also ceased storing the food for the fox in the staff fridge when that had been raised as an issue previously.  Although he had signed off on numerous workplace training courses, he denied ever undertaking Pest Control Procedure training relating to the feeding of animals.  He contended that Mr B had undertaken identical training but had not been suspended or investigated.  The Complainant had been suspended on full pay for a four-month period before being permitted to return to work on the same site following the issuing of the verbal warning which was subsequently withdrawn.  He seeks compensation for the effects of the discrimination alleged.

Whilst the Respondent did not seek to stand over the workplace investigation in question, it refuted the assertion that the Complainant had been suspended and subject to this investigation owing to his Hungarian nationality.  It was contented that there were other factors at play explaining why he had been subject to the investigation and Mr B had not, including the fact that it had been alleged that he had been spoken to about feeding the fox previously and had also undergone Pest Control Procedure training whilst Mr B had not.  Hence there was no prima facie case of discrimination.

The starting point to assessing whether the Complainant has established a prima facie case of discrimination on the ground of race based upon his Hungarian nationality is to examine Mr A’s statement of 15th January 2021 as this document led to the Respondent’s decision to suspend him and subject him to the investigation process on both Parties’ accounts.  In this respect, the following observations are made in relation to the Complainant and his comparator, Mr B, an Irish national:

- The statement alleges that the Complainant brought “most of the food” on site “all the time”.  This is not alleged against Mr B.

- The statement alleges that Mr A had spoken to the Complainant several times (dates listed) about bringing food to the site to feed the fox and storing it in the staff fridge but “he didn’t follow the rules and he still bring”.  This is not alleged against Mr B.

- The statement alleges that the Complainant attended at the site on 23rd December 2020 when he was off work solely for the purposes of feeding the fox.  This is not alleged against Mr B.

- The statement alleges that when Mr A asked the Complainant to stop feeding the fox, he was argumentative and told Mr A to report him to Management.  This is not alleged against Mr B.

- The only allegation against Mr B is that he dumped food in the same place on one occasion.

There was no suggestion by the Complainant that Mr A’s statement itself was racially motivated.  Aside from whether it was well-founded or not, I am of the view that this statement implicated the Complainant in what would reasonably be regarded as much more serious conduct than that alleged against Mr B.  On any reading of this statement and in the absence of any other evidence suggestive of same, there is no evidential basis for the contention that the Complainant was selected owing to his Hungarian nationality and thus within the range of inferences which could be reasonably drawn.  Having so found, it is unnecessary to consider the Management’s state of knowledge as to whether he had undergone Pest Control Procedure training as a further basis for his selection over Mr B.

I also find it significant that albeit questioning his selection for investigation throughout, at no stage of the process, did either the Complainant or his Union Rep ever suggest that his Hungarian nationality was a factor in the Respondent’s decision to subject him to the investigation.  This contention was first made in the complaint form referred to the WRC on 6th October 2021 over three months after the withdrawal of the verbal warning on 1st June 2021.  Although aggrieved at the perceived unfairness of being the only one subject to what he regarded to be a procedurally defective investigation process, it was also telling that at no stage of his evidence, either direct or under cross-examination, did he express a view that this treatment was owing to his Hungarian nationality.  Nor is it asserted that there were any references to his nationality throughout the investigation process.  Accordingly, I do not believe that the Complainant himself was ever of the view that he had been selected for suspension and investigation owing to his Hungarian nationality.  Although his sense of grievance may well be justified, the facts cannot be shoehorned into a complaint of discrimination on the ground of race simply because he happens to be of a particular nationality.  Applying Section 85A of the Employment Equality Act 1998 as interpreted by the aforesaid caselaw to the Complainant’s evidence taken at its height, I find on the balance of probabilities that he has failed to establish facts from which discrimination may be inferred.

Decision:  

Section 79 of the Employment Equality Acts 1998-2015 requires that I make a decision in relation to the complaint.  I have concluded my investigation of this complaint and based upon the aforesaid reasoning, find pursuant to Section 79(6) of the Acts, that the Complainant has not established in the first instance, facts from which either direct or indirect discrimination on the ground of race may be inferred requiring the Respondent to rebut same.  This complaint therefore fails and is dismissed.

Dated:   19th June 2023

Workplace Relations Commission Adjudication Officer:  Aideen Collard

Key Words: Discrimination on the ground of race / nationality – condition of employment – prima facie case - Sections 6(2)(h), Section 8 and Section 85A of the Employment Equality Acts 1998-2015