Complainant

Respondent

Parties

Ertugrul Altun

Synergy Security Solutions Limited

Representatives

Self-represented

Frank Walsh, Head of HR and Legal

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-00060965-001

12/01/2024

The Complainant, who is Turkish, asserts that he was discriminated against due to his race.

The Respondent rejects the complaint.

Background

The Complainant submits that he began working for the Respondent in March 2022. A few months into his employment, discussions arose initiated by his manager and other employees regarding an unequal practice within the Respondent company. It was revealed that one of the Complainant’s colleagues had started receiving night shift allowances, which the Respondent had concealed. The Complainant believed this practice was discriminatory and unjust, so he reached out to HR via email. Initially, HR's response was an attempt to dismiss and justify this unfair payment structure. Despite highlighting the discrimination and threatening legal action, the Respondent only rectified the situation after persistent appeals.

Following these issues, the Respondent lost its contract with its client, and the Complainant was transferred to another company under a TUPE (Transfer of Undertakings (Protection of Employment)) arrangement. During this period, the Complainant was writing his thesis for his master’s degree and requested one month’s leave, which was denied. Consequently, he resigned to focus on his academic commitments.

Incident in November 2022 and disciplinary investigation

In September 2022, the Complainant received a job offer from the Respondent. Approximately a month into the Complainant’s renewed employment, tensions began to escalate. A colleague approached him in October 2022 to discuss an unofficial practice where employees arrived 30 minutes early and left 30 minutes before the shift ended. The Complainant informed his colleague of his reliance on public transportation, which required changing two buses to reach work and made it difficult for him to arrive early for work. Subsequently, the Complainant experienced exclusion from co-workers and felt isolated.

In November, the Complainant faced severe delays due to overcrowded buses. He called the Respondent’s Control Room to inform them of his delayed arrival. Upon arriving at 7:30 or 7:35, his colleague from the previous shift had already left. The Complainant was met with verbal aggression from another colleague who yelled at him and threatened his employment, eventually resorting to profane language and threatening physical violence. Despite apologising, the Complainant was met with further hostility.

The Complainant reported this incident and requested a site transfer. The ensuing month provided no resolution, despite assurances from management that steps would be taken. Instead, the Complainant was advised to “let it go,” a response he found difficult to accept.

The Complainant filed a claim with the Workplace Relations Commission (WRC) when no substantial action was taken by the Respondent. Mediation meetings were more positive; for the first time, he felt valued as a person, an experience unfamiliar in his home country. However, no disciplinary actions were initiated, and management’s promises were unfulfilled.

Fire Service incident

One night, after volunteering for a night shift, the Fire Service arrived for an inspection based on a misleading call. Standard Operating Procedure (SOP) training directed the Respondent’s employees not to allow law enforcement entry without managerial approval, so the Complainant and his colleague followed protocol. This led to an alleged unfair disciplinary investigation by the Respondent. The culmination of these incidents prompted the Complainant’s resignation after being subjected to continuous mobbing and discrimination.

Refugee camp assignment

In July, after continuous delays and excuses regarding a suitable site, the Respondent offered the Complainant a position at a refugee camp located 1.5 hours from his home. Upon arrival, the Complainant noted significant safety concerns, including the visible presence of metal knives and frequent violent incidents. On the first day alone, staff had to call Gardaí three times and summon an ambulance twice due to fights. The environment was volatile, compromising not only the safety of staff but also of residents. This assignment exacerbated the Complainant’s existing stress and made him feel unsafe, contributing to his final decision to resign, especially after receiving his visa approval from the Immigration Office.

Conclusion

Given the events outlined above, the Complainant believes that he was subjected to mobbing and discrimination that pushed him into a state of psychological distress.

The Complainant joined the Respondent on 23 August 2023 as a security officer. He had previously been employed by the Respondent but moved to another employer as a result of a TUPE.

The Complainant resigned his position with the Respondent on 1 July 2024. In his resignation letter, the Complainant stated that he was quitting because he had been granted a Stamp 4 permit and no longer needed to work as a security officer. In his resignation letter, the Complainant thanked management of the Respondent company for their assistance and support.

The Respondent submits that it dealt with the Complainant’s issues about unsocial payments for night shifts and difficulties attending his shifts on time due to bus schedules in an appropriate and timely manner.

The Complainant submitted an application to transfer to another site on 29 November 2023, stating that the situation with his colleagues had hindered his ethnic and social inclusion. He referred to the Respondent’s training on diversity and inclusion and said that such circumstances can lead to psychological issues and incorrect decisions.

A Manager met with the Complainant on 21 December 2023 to discuss the issues he had raised. At the end of the meeting, the Complainant expressed a wish to transfer to another site. When asked about his other complaints, the Complainant said that he did not wish to take them any further and would be happy to close them down.

Further to his application to transfer, the Respondent wrote to the Complainant on 10 January 2024 to explain that a transfer could take some time and that he may be without work and payment while waiting for his transfer. The Respondent advised the Complainant to remain at his then current site pending the outcome of his transfer application.

On 12 January 2024, the Complainant was offered an alternative position which he did not accept due to a 7am start.

While awaiting a transfer, the Respondent continued to support the Complainant and provided him with shifts which took account of his public transport issues.

Around that time, the Complainant advised the Respondent of his intention to commence a college course which necessitated attendance at classes three days a week. He also advised the Respondent that he wished to avail of annual leave from 20 March to 20 April 2024 in order return to his home country to sit an exam.

The Complainant’s manager met with him on 15 February 2024 to discuss his college course and request for annual leave. At the meeting, the Complainant’s manager said that he would continue to support him and would provide shifts where available. In relation to the Complainant’s request for a month’s leave, his manager explained that his contract only permitted two weeks leave at any time unless for exceptional circumstances. The Complainant acknowledged this and said that he would be willing to take leave from 20 to 29 March 2024.

On 26 February 2024, the Complainant was involved in a serious disciplinary incident which resulted in an investigation and a written warning.

On 28 February 2024, the Complainant resigned from the Respondent company.  In his resignation letter, he wrote “I am grateful for the opportunity to have worked here and for the experiences I have gained during my tenure.”

In his email, the Complainant said that he was quitting because he got his Stamp 4 and no longer needed to work as a security officer. He finished by saying that he was happy to have been on board and thanked management for their assistance and support.

Legal issues

Section 85A of the Employment Equality Act 1998, as amended (the “Act”), places the burden of proof on a complainant to establish a presumption of discrimination. The Respondent refutes any allegation of discrimination and submits that the Complainant has not established facts from which a presumption of discrimination can be established. The Respondent employs a multicultural workforce, the majority of whom are not Irish. The Respondent does not differentiate or discriminate between its employees based on any of the nine grounds set out in the Act. When the Complainant referred a discriminatory matter to the Respondent, it was investigated and resulted in the Complainant stating that he did not want to take it any further and would be happy to close it down.

The Respondent submits that sweeping assumptions, unsupported by solid evidence, cannot provide a sufficient evidential basis upon which to raise a presumption of discrimination.

Section 14(a)(2) of the Act provides a defence for an employer where it can be proven that it took such steps as were reasonably practicable to prevent the harassment. The Respondent submits that it took all necessary steps to prevent any harassment of the Complainant when he complained that his colleagues wanted him to start earlier than his official time. This is not a case where the employer failed to adequately investigate a complaint; rather the Complainant withdrew the allegation and did not proceed. The Complainant was provided with all relevant compony policies on harassment and signed for same. The Respondent submits that despite the Complainant not following up on his complaint, directions were issued to all staff to ensure that no discrimination or harassment would occur.

In general, a complainant must prove less favourable treatment compared to another person in a similar position. Therefore, without a comparator, a complaint will fail. To date, no comparator has been notified to the Respondent by the Complainant.

Conclusion

The Respondent submits that the Complainant has not established a presumption of discrimination and, therefore, his complaint should fail.

Discrimination of the ground of race

The issue for consideration in this case is whether the Complainant was discriminated against by reason of his race.  In reaching my decision I have taken into account all of the submissions, oral and written, made to me in the course of the investigation as well as the evidence presented at the hearing.

Discrimination on the ground of race is defined in section 6(1) of the Employment Equality Act 1998, as amended (the Act) which 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)  (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,

Section 6(2) of the Acts defines the relevant discriminatory grounds as follows.

(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”), …”

Burden of proof

Before I investigate the complaint, I will set out a brief explanation about the burden of proof applicable in relation to complaints made pursuant to the provisions of the Employment Equality Act 1998, as amended (the “Act”).

The burden of proof is on the Complainant to present, in the first instance, facts from which it can be inferred that he was treated less favourably on the discriminatory ground of race. This means that the Complainant must establish primary facts upon which the claim of discrimination is grounded. If he succeeds in doing so, then, and only then, the burden of proof passes to the Respondent and it is for the Respondent to prove that there was no infringement of the principle of equal treatment.

Section 85A of the Act sets out the burden of proof which applies in a claim of discrimination in the following manner:

“(1) 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.

(2) This section is without prejudice to any other enactment or rule of law in relation to the burden of proof in any proceedings which may be more favourable to a complainant.

(3) Where, in any proceedings arising from a reference of a matter by the Commission to the [Director General] under section 85(1), facts are established by or on behalf of the Commission from which it may be presumed that an action or a failure mentioned in a paragraph of that provision has occurred, it is for the respondent to prove the contrary.

(4) In this section “discrimination” includes—

(a) indirect discrimination,

(b) victimisation,

(c) harassment or sexual harassment,

(d) the inclusion in a collective agreement to which section 9 applies of a provision which, by virtue of that section, is null and void.”

The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of “sufficient significance” before a presumption of discrimination is established and the burden of proof shifts to the Respondent. 

The Labour Court elaborated on the interpretation of section 85A in the case of Melbury v Valpeters EDA0917 where it held that section 85A: 

"…. provides for the allocation of the probative burden in cases within its ambit. This requires that the Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts, which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. section 85A places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.”

There must be fact of “sufficient significance” to raise a presumption of discrimination. It is not sufficient to simply be a covered by one of the grounds of discrimination i.e. race to render acts discriminatory.  If for example no comparator exists or can be inferred, or the acts are transparently attributable to a non-discriminatory cause.

In Margetts v Graham Anthony & Company Limited EDA038, the evidential burden which must be discharged by the Complainant before a presumption of discrimination can be said to have been established was outlined by the Labour Court as follows:

“The law requires the complainant to establish facts from which it may be inferred that discrimination has taken place.  The appellant must, on the balance of probabilities, prove those facts from which such an inference can be drawn.  When these facts are established to the satisfaction of the Court, the onus shifts to the respondent to show, on the balance of probabilities, that it did not discriminate against the appellant.  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.”

The burden of proof which must be satisfied by the Complainant was summarised in Minaguchi v. Wineport Lakeshore Restaurant as follows: “It appears to me that the three key elements which need to be established by a complainant to show that a prima facie case exists are:

(i)      that he is covered by the relevant discriminatory ground(s)

(ii)    that he has been subjected to specific treatment and

(iii)  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.”

In deciding on this complaint, therefore, I must first consider whether the presumption of discrimination has been established by the Complainant. It is only where such a presumption has been established that the burden of proving there was no infringement of the principle of equal treatment passes to the Respondent. 

Findings

Discrimination on the grounds of race

The Complainant claims that he was discriminated against during his employment with the Respondent because he is Turkish.

At the hearing the Complainant confirmed that he felt that he suffered discrimination because he was unable to be in work by 6.30am which annoyed his colleagues and not because of his race.

Having carefully considered the matters raised by the Complainant, I find that the Complainant has not established primary facts to support a claim of discrimination on the grounds of race. Therefore, the burden of proof does not pass to the Respondent to prove that there was no infringement of the principle of equal treatment. 

Discrimination in conditions of employment

The Complainant asserted that he was discriminated in his conditions of employment on the ground of race.

The Complainant did not put any evidence before me to support his element of his complaint.

Claim of harassment

Section 14A provides a defence for an employer if it can prove that it took reasonably practicable steps to prevent the person from harassing the victim, or any class of person which includes the victim, and to prevent the victim from being treated differently in the workplace, and, if and so far as any such treatment has occurred, to reverse its effects as follows:

Section 14A:

(1) For the purposes of this Act, where—

(a) an employee (in this section referred to as “the victim”) is harassed or sexually harassed either at a place where the employee is employed (in this section referred to as “the workplace”) or otherwise in the course of his or him employment by a person who is—

(i) employed at that place or by the same employer, (ii) the victim's employer, or (iii) a client, customer or other business contact of the victim's employer and the circumstances of the harassment are such that the employer ought reasonably to have taken steps to prevent it, or

(7) (a) In this section— (i) references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds, and (ii) references to sexual harassment are to any form of unwanted verbal, non-verbal or physical conduct of a sexual nature, (b) being conduct which in either case has the purpose or effect of violating a person's dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person. (c) Without prejudice to the generality of paragraph (a), such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material.

For a complaint of harassment under the Employment Equality Acts to be made out, the Complainant must demonstrate a link between the alleged treatment and the discriminatory ground.

At the hearing, the Complainant said that his colleagues did not treat him badly because of his ethnicity but because he was unable to be at work as early as they would have liked. I note that the Respondent submitted that it had taken all necessary steps to prevent harassment of the Complainant when he complained that his colleagues wanted him to start earlier than his official start time and he was unable to do so. I further note the Respondent’s submission that the Complainant was provided with all relevant company policies on harassment and signed for same.

I am satisfied that the Complainant did not make any complaint of harassment on grounds of race to the Respondent.

Having regard to the evidence before me, I find that the Complainant has not presented any evidence from which I could reasonably conclude that he was subjected to harassment on the ground of his race contrary to section 14A of the Act. 

I decide that

·       The Complainant has failed to establish a presumption of direct discrimination on the grounds of race.

·       The Complainant has failed to establish a presumption of discrimination in his conditions of employment on the grounds of race.

·       The Complainant has failed to establish a presumption of harassment by the Respondent contrary to section 14A of the Act.

Accordingly, I decide that the complaint is not well founded.

Failure to establish a presumption of discrimination on the ground of race