Complainant

Respondent

Parties

Anuaj  Patwardhan

Black Shamrock Ltd

Representatives

James McEvoy of Work Matters Ireland

Kevin Bell BL instructed by Richard Smith, Solicitor of William Fry LLP

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-00050731-001

20/05/2022

The issue in contention was the alleged Discriminatory Dismissal of the Complainant, in contravention of the Employment Equality Act,1998, by the Respondent Employer on Religion and Racial Origin grounds.

The Employment began on the 1st February 2022 and ended on the 25th April 2022.

The Complainant was employed as a HR and Operations Manager on a stated Annual Salary of €70,000 for a 40 Hour week.

The Complainant made a sworn Oral Testimony supported by a Written Submission. The chief spokesperson was Mr McEvoy.

The employment, as a HR Manager, began on the 1st February 2022 and ended, just 7 weeks later on the 25th April 2022.

The Complainant is highly qualified to Master’s degree level and has considerable prior experience in the HR discipline. During her time with the Company, she was never made aware of any negative performance issues.

In a letter of the 25th April she had been informed that she  “was not the appropriate fit in terms of role suitability and overall performance”.

However, at an on line meeting prior to the issue of the above letter she had been told by Mr C and Ms F that “her culture was not a good fit for the company”. On making inquiries she was again told that “she was not a good culture fit”.

The Complainant alleged that she was let go because of her Ethnic background, she was of Indian origin and her Religious beliefs.

Throughout her time with the Company, she had never been cautioned or appraised of any negative performance issue that, if informed of in good time, she could have addressed satisfactorily.

She outlined her duties, all of a senior level, and outlined her satisfactory performance and targets achieved.

Mr McEvoy pointed to the Letter of Dismissal which was he alleged silent on performance shortcomings.

In cross examination from Mr Bell BL for the Respondent the Complainant agreed that she had clearly told the initial job interviewer, Mr C, of her Indian origin and that there had never been any mention of her Religious beliefs.

A difference of opinion with Mr Bell arose over an alleged Mid Probation meeting on the 7th April 2022 with Mr C and Ms L where it was alleged by the Respondent performance shortcoming were identified. The Complainant also disputed any suggestions from Mr Bell that other staff members, 2 in particular, were unhappy with her.

Mr McEvoy summarised the case as one where there had clearly been a discriminatory approach towards a person of Indian origin. Performance was never an issue, only “Culture” which could only mean one Discriminatory thing.

Respondent Managers, Mr C, the GM, Ms L and Ms M from HR, gave sworn Oral Testimony supported by a Written Submission. Mr Bell BL was the chief spokesperson.

Mr Bell opened by reference to Section 85 A – the Burden of Proof section, of the Employment Equality Act,1998. He also referenced the Legal precedents of Southern Health Board v Mitchell [2001] 12 ELR 201 and Cork City Council v McCarthy EDA 21/2008 in support of the argument that an Equality Case has to, firstly establish, a sound basis for proceeding – a prima facie case is the Legal phrase normally used. He contended that the Complainant’s case lacked all basic proofs to even rise an inference of Discrimination on either Religious or Racial origin Grounds.

The Respondents outlined the background as they saw it. The Complainant had been interviewed initially by Mr C, the General Manager. In this interview the Complainant had advanced her Indian background as a major advantage in securing Candidates and cited her extensive Senor Level HR Experience. There could be no doubt that the Respondent was fully aware of the Indian heritage of the Complainant.

Unfortunately, from an early date the Complainant was identified as having serious shortcomings in basic duties such as payroll and recruitment procedures. A midterm Probation review took place on the 7th April with Mr C, the GM and Ms L, the HR Director, from the European Office of the Parent Company. Full notes of the meeting were presented in evidence. Serious deficiencies were identified in the Complainant’s performance. This meeting completely rebuts the Complainant assertion that she was not given any indication of Respondent unhappiness with her duties.

After this meeting a very serious issue arose in that two other colleagues announced that they were resigning due to the actions of the Complainant. Mr C investigated further and discovered additional shortcomings in the Technical competence of the Complainat. The entire HR Office atmosphere had, it was alleged, gone “Toxic” due to the Complainant.

Accordingly, it was decided to consider terminating her employment and this was communicated at a meeting, having considered the Complainant’s views, on the 22nd April 2022. Reference to “Culture” referred to the Corporate culture and had nothing to do with Racial or Religious backgrounds. It is a very multinational work force. No questions of Religion ever arose. It was completely unknow what Religious beliefs the Complainant had.

The Dismissal took place purely over basic competence issues in which the Complainant was severely lacking.

In Legal submissions the Respondent cited Southern Health Board v Mitchell [2001] 12E ELR 201 and Melbury v Valpeters [2021] 21 ELR 64 in support of their basic Burden of Proof Arguments cited above.

Cross examination of the Complainant largely focused on her initial interview and the meeting of the 7th April 2022.

3:        Findings and Conclusions:

3:1        The Employment Equality Act, 1998 complaint – CA - 00050731-001

The Law in Employment Equality cases - Employment Equality Act,1998

Sections 2 & 6 Discrimination - Section 85 (A) the Burden of Proof, Legal Precedents

 In an employment Equality case such as here it is necessary to firstly establish certain Legal issues -these being

1.           In the Complainant covered by the Discrimination provisions of Section 2 and 6 of the Act. in other words, is she eligible to being a claim?

2.           Was she discriminated against? Has a prima facie case been set out.

3.           Was the treatment of the Complainant less favourable than that which would apply to another individual not covered by the Discriminatory ground?

Depending on these answers the Provisions of Section 85 (A) The Burden of Proof, then apply.

In plain English the onus is on the Employer to prove that no Discrimination occurred once the Complainant has established a suitable inference of possible Discrimination. This is not absolute proof just a realistic possibility that merits further investigation.

There is significant case law in support of the above points - The starting point as referred to by the Parties would be the decision of the Labour Court in Southern Health Board v Mitchell, [2001} -ELR 201 a decision which remains the leading decision on the shifting of the burden of proof. The Court considered the extent of the evidential burden which a claimant must discharge before a prima facie case of discrimination can be made out:

“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.”

Notwithstanding legal precedent all cases rests on their own particular facts and evidence and I will, using the points above, now consider the case.

3:2      Was the Complainant covered by the Discrimination provisions of the Act?

In her complaint form she pointed to Ethnic Origin and Religious grounds.

Clearly, she was of Indian origin and her Religious Grounds were never stated at any stage.

Reviewing the evidence presented I think it fair to say that she satisfies one of these Discrimination requirements i.e., of Indian Origin but complete lack of detail on the Religious grounds make it inadmissible.

3:3        Was she Discriminated against in the ending of her employment?

Her employment was allegedly terminated, as alleged by the Employee, on the grounds that her Indian Background made her “Not a good fit with the Culture” of the Employer?

The Respondent employer is quoted in their letter of the 25th April as stating.

“this employment arrangement is not the appropriate fit in terms of role suitability and overall performance”

Whether or not the ending of this Employment was a Discriminatory act must be discussed below in conjunction with the Burden of Proof question.

3:4        The Burden of Proof.

The Employment Equality Act Section 85(A) requires that the Complainant raises a sufficient inference that discrimination as alleged occurred.  As stated above this is called in Legal parlance “Making a prima facie case”.

 If this is established, then it is over to the Respondent Employer to prove that the alleged Discrimination did not occur.

Reviewing the evidence, both oral and Written I came to the view that the Burden of Proof rested initially with the Complainant successfully or unsuccessfully establishing a prima facie case.

The Religious grounds were obviously not substantiated by any proof or even inferences. Religion was never an issue.

On the Indian origin issue this was more complex. The Complainant had never made any secret of her Origin and had indeed posited it as an advantage. In a very multinational Company with very diverse ethnic origins of staff being of Indian origin was neither a positive or a negative.

The key issues appear to have been those discussed at the Online meeting of the 7th April and the subsequent further allegations alleged coming from colleagues regarding the “Toxic” atmosphere in the office. Neither of these potential witnesses were available for cross examination by the Complainant.

Substantial Oral testimony was given by Mr C, the GM and Ms L of HR for the Respondent. It was under sworn affirmation. The witnesses gave solid evidence.  A picture of organisational dysfunction was painted as regards the Complainant. Detailed records of the meeting of the 7th April 2022 were presented.

Listening to the oral testimony and reading the detailed records and bearing in mind that this was an Employment Equality Act,1998 case based on an allegation of Racial origin discrimination, it was possible to discern considerable unhappiness between the Parties.

However, and this was the crucial point it was not obvious or supported by any evidence that the Racial Origin of the Complainant was a key factor or a factor at all.

It is important to note that references to “Corporate culture” in what could be loosely called “MBA” style speech do not usually refer to the Racial or Other Origins of a Worker. Organisations have all their own style and quite often new recruits find the “house style or culture” not to their  liking. In a Probationary Period, such as we had in this case this “mismatch” often leads to a probation not being converted to a Permanent Appointment.

In a Probationary Period, the Adjudicator is always cautioned from seeking to give their own interpretation or decision on an appointment once Natural Justice has been seen to have been observed. This is particularly the case when allegation of misconduct are involved.

In the Termination letter of the 25th April 2022, it is clearly stated that “this termination has in no way been based off any allegations of misconduct”.

3:5       Adjudication Summary

This was a Performance Probation Termination and from all the Oral and Written evidence it was conducted reasonably fairly.

The Adjudicator could not see any evidence of a Religious or an Ethnic origin basis in the decision. There is not enough or indeed any obvious evidence of a Discriminatory Dismissal.

Accordingly, the Discrimination case must fail.

Complainant

Respondent

Parties

Anuaj  Patwardhan

Black Shamrock Ltd

Representatives

James McEvoy of Work Matters Ireland

Kevin Bell BL instructed by Richard Smith, Solicitor of William Fry LLP

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-00050731-001

20/05/2022

The issue in contention was the alleged Discriminatory Dismissal of the Complainant, in contravention of the Employment Equality Act,1998, by the Respondent Employer on Religion and Racial Origin grounds.

The Employment began on the 1st February 2022 and ended on the 25th April 2022.

The Complainant was employed as a HR and Operations Manager on a stated Annual Salary of €70,000 for a 40 Hour week.

The Complainant made a sworn Oral Testimony supported by a Written Submission. The chief spokesperson was Mr McEvoy.

The employment, as a HR Manager, began on the 1st February 2022 and ended, just 7 weeks later on the 25th April 2022.

The Complainant is highly qualified to Master’s degree level and has considerable prior experience in the HR discipline. During her time with the Company, she was never made aware of any negative performance issues.

In a letter of the 25th April she had been informed that she  “was not the appropriate fit in terms of role suitability and overall performance”.

However, at an on line meeting prior to the issue of the above letter she had been told by Mr C and Ms F that “her culture was not a good fit for the company”. On making inquiries she was again told that “she was not a good culture fit”.

The Complainant alleged that she was let go because of her Ethnic background, she was of Indian origin and her Religious beliefs.

Throughout her time with the Company, she had never been cautioned or appraised of any negative performance issue that, if informed of in good time, she could have addressed satisfactorily.

She outlined her duties, all of a senior level, and outlined her satisfactory performance and targets achieved.

Mr McEvoy pointed to the Letter of Dismissal which was he alleged silent on performance shortcomings.

In cross examination from Mr Bell BL for the Respondent the Complainant agreed that she had clearly told the initial job interviewer, Mr C, of her Indian origin and that there had never been any mention of her Religious beliefs.

A difference of opinion with Mr Bell arose over an alleged Mid Probation meeting on the 7th April 2022 with Mr C and Ms L where it was alleged by the Respondent performance shortcoming were identified. The Complainant also disputed any suggestions from Mr Bell that other staff members, 2 in particular, were unhappy with her.

Mr McEvoy summarised the case as one where there had clearly been a discriminatory approach towards a person of Indian origin. Performance was never an issue, only “Culture” which could only mean one Discriminatory thing.

Respondent Managers, Mr C, the GM, Ms L and Ms M from HR, gave sworn Oral Testimony supported by a Written Submission. Mr Bell BL was the chief spokesperson.

Mr Bell opened by reference to Section 85 A – the Burden of Proof section, of the Employment Equality Act,1998. He also referenced the Legal precedents of Southern Health Board v Mitchell [2001] 12 ELR 201 and Cork City Council v McCarthy EDA 21/2008 in support of the argument that an Equality Case has to, firstly establish, a sound basis for proceeding – a prima facie case is the Legal phrase normally used. He contended that the Complainant’s case lacked all basic proofs to even rise an inference of Discrimination on either Religious or Racial origin Grounds.

The Respondents outlined the background as they saw it. The Complainant had been interviewed initially by Mr C, the General Manager. In this interview the Complainant had advanced her Indian background as a major advantage in securing Candidates and cited her extensive Senor Level HR Experience. There could be no doubt that the Respondent was fully aware of the Indian heritage of the Complainant.

Unfortunately, from an early date the Complainant was identified as having serious shortcomings in basic duties such as payroll and recruitment procedures. A midterm Probation review took place on the 7th April with Mr C, the GM and Ms L, the HR Director, from the European Office of the Parent Company. Full notes of the meeting were presented in evidence. Serious deficiencies were identified in the Complainant’s performance. This meeting completely rebuts the Complainant assertion that she was not given any indication of Respondent unhappiness with her duties.

After this meeting a very serious issue arose in that two other colleagues announced that they were resigning due to the actions of the Complainant. Mr C investigated further and discovered additional shortcomings in the Technical competence of the Complainat. The entire HR Office atmosphere had, it was alleged, gone “Toxic” due to the Complainant.

Accordingly, it was decided to consider terminating her employment and this was communicated at a meeting, having considered the Complainant’s views, on the 22nd April 2022. Reference to “Culture” referred to the Corporate culture and had nothing to do with Racial or Religious backgrounds. It is a very multinational work force. No questions of Religion ever arose. It was completely unknow what Religious beliefs the Complainant had.

The Dismissal took place purely over basic competence issues in which the Complainant was severely lacking.

In Legal submissions the Respondent cited Southern Health Board v Mitchell [2001] 12E ELR 201 and Melbury v Valpeters [2021] 21 ELR 64 in support of their basic Burden of Proof Arguments cited above.

Cross examination of the Complainant largely focused on her initial interview and the meeting of the 7th April 2022.

3:        Findings and Conclusions:

3:1        The Employment Equality Act, 1998 complaint – CA - 00050731-001

The Law in Employment Equality cases - Employment Equality Act,1998

Sections 2 & 6 Discrimination - Section 85 (A) the Burden of Proof, Legal Precedents

 In an employment Equality case such as here it is necessary to firstly establish certain Legal issues -these being

1.           In the Complainant covered by the Discrimination provisions of Section 2 and 6 of the Act. in other words, is she eligible to being a claim?

2.           Was she discriminated against? Has a prima facie case been set out.

3.           Was the treatment of the Complainant less favourable than that which would apply to another individual not covered by the Discriminatory ground?

Depending on these answers the Provisions of Section 85 (A) The Burden of Proof, then apply.

In plain English the onus is on the Employer to prove that no Discrimination occurred once the Complainant has established a suitable inference of possible Discrimination. This is not absolute proof just a realistic possibility that merits further investigation.

There is significant case law in support of the above points - The starting point as referred to by the Parties would be the decision of the Labour Court in Southern Health Board v Mitchell, [2001} -ELR 201 a decision which remains the leading decision on the shifting of the burden of proof. The Court considered the extent of the evidential burden which a claimant must discharge before a prima facie case of discrimination can be made out:

“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.”

Notwithstanding legal precedent all cases rests on their own particular facts and evidence and I will, using the points above, now consider the case.

3:2      Was the Complainant covered by the Discrimination provisions of the Act?

In her complaint form she pointed to Ethnic Origin and Religious grounds.

Clearly, she was of Indian origin and her Religious Grounds were never stated at any stage.

Reviewing the evidence presented I think it fair to say that she satisfies one of these Discrimination requirements i.e., of Indian Origin but complete lack of detail on the Religious grounds make it inadmissible.

3:3        Was she Discriminated against in the ending of her employment?

Her employment was allegedly terminated, as alleged by the Employee, on the grounds that her Indian Background made her “Not a good fit with the Culture” of the Employer?

The Respondent employer is quoted in their letter of the 25th April as stating.

“this employment arrangement is not the appropriate fit in terms of role suitability and overall performance”

Whether or not the ending of this Employment was a Discriminatory act must be discussed below in conjunction with the Burden of Proof question.

3:4        The Burden of Proof.

The Employment Equality Act Section 85(A) requires that the Complainant raises a sufficient inference that discrimination as alleged occurred.  As stated above this is called in Legal parlance “Making a prima facie case”.

 If this is established, then it is over to the Respondent Employer to prove that the alleged Discrimination did not occur.

Reviewing the evidence, both oral and Written I came to the view that the Burden of Proof rested initially with the Complainant successfully or unsuccessfully establishing a prima facie case.

The Religious grounds were obviously not substantiated by any proof or even inferences. Religion was never an issue.

On the Indian origin issue this was more complex. The Complainant had never made any secret of her Origin and had indeed posited it as an advantage. In a very multinational Company with very diverse ethnic origins of staff being of Indian origin was neither a positive or a negative.

The key issues appear to have been those discussed at the Online meeting of the 7th April and the subsequent further allegations alleged coming from colleagues regarding the “Toxic” atmosphere in the office. Neither of these potential witnesses were available for cross examination by the Complainant.

Substantial Oral testimony was given by Mr C, the GM and Ms L of HR for the Respondent. It was under sworn affirmation. The witnesses gave solid evidence.  A picture of organisational dysfunction was painted as regards the Complainant. Detailed records of the meeting of the 7th April 2022 were presented.

Listening to the oral testimony and reading the detailed records and bearing in mind that this was an Employment Equality Act,1998 case based on an allegation of Racial origin discrimination, it was possible to discern considerable unhappiness between the Parties.

However, and this was the crucial point it was not obvious or supported by any evidence that the Racial Origin of the Complainant was a key factor or a factor at all.

It is important to note that references to “Corporate culture” in what could be loosely called “MBA” style speech do not usually refer to the Racial or Other Origins of a Worker. Organisations have all their own style and quite often new recruits find the “house style or culture” not to their  liking. In a Probationary Period, such as we had in this case this “mismatch” often leads to a probation not being converted to a Permanent Appointment.

In a Probationary Period, the Adjudicator is always cautioned from seeking to give their own interpretation or decision on an appointment once Natural Justice has been seen to have been observed. This is particularly the case when allegation of misconduct are involved.

In the Termination letter of the 25th April 2022, it is clearly stated that “this termination has in no way been based off any allegations of misconduct”.

3:5       Adjudication Summary

This was a Performance Probation Termination and from all the Oral and Written evidence it was conducted reasonably fairly.

The Adjudicator could not see any evidence of a Religious or an Ethnic origin basis in the decision. There is not enough or indeed any obvious evidence of a Discriminatory Dismissal.

Accordingly, the Discrimination case must fail.