Anonymised Parties

 A Security Officer

A Retail Store

Representatives

  Self-represented

IBEC

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-00048237-001

20/01/2022

The Complainant alleges that he was the subject of racial discrimination on 19 December 2021, by a store manager of the Respondent company, while working as a security guard for [Name of Security Firm Redacted] whose services were engaged by the Respondent company. The Complainant was assigned for his shift to the Respondent company’s [Street Location redacted] store, in Cork city. Specifically, he alleges that he was the subject of racial comment, singled out, humiliated and searched.

The Respondent disputes this claim in its entirety.

The complaint was brought under the Equal Status Act, 2000. However, the narrative outlined in the complaint form properly comes within the Employment Equality Act 1998.

The Respondent ran a defence denying the facts of the particular case; and, in the alternative, submits that the Respondent has no responsibility under either the Equal Status Act 2000 or, alternatively, the Employment Equality Act 1998, to the Complainant on the facts of the case, as set out. The Adjudication Officer, at the hearing, queried this line of defence as it appeared that the argument being advanced was that – leaving aside that the Respondent was denying that the specifics of this particular case had occurred at all – a person who had been the subject of the allegations the Complainant alleged would have no legal remedy, under either the Equal Status Act 2000, or the Employment Equality Act 1998. Notably, the Respondent did not run the defence that the Complainant had sued an incorrect Respondent, simply that it had no responsibility to him under either of the two pieces of legislation. After considerable argument in relation to the preliminary points raised, the Adjudication Officer with the consensus of the parties at the hearing, reserved her decision in relation to same.

Ultimately, the Adjudication Officer has determined to hear this case under the Employment Equality Act 1998.

The Complainant gave evidence on his own behalf, at the hearing.

The Complainant gave evidence that he was working as a security guard contractor (employed by [Name of Security Firm Redacted]) on December 19th, 2021, assigned for his shift to the Respondent’s retail store, [Street Location redacted], in Cork city.

He submits that he had a very negative experience on that shift, and he alleges that that negative experience was racially motivated.

He gave evidence that when he was being shown around first, at the start of his shift, he asked about the canteen (where the staff have lunch) and the person showing him around said ‘something to the effect of: ‘Oh have you brought your curry with you?’’ He said: ‘I am used to this’ (comments of a racialised nature). He said: ‘If it was just this, I would not have made a complaint.’ He said that, throughout the shift, he was watched closely, targeted, singled out and humiliated, which he submits was also racially motivated. He said that a number of comments were passed at him. He said that he was questioned and criticised for needing to use the toilet. He explained that his wife was ill that day and he had his phone with him because he needed to check if she was okay. He said that when his shift ended and he was leaving the store at 6pm, he went to the canteen to get his bag and jacket and while leaving the store, he was asked by the same store manager to open his bag and show it to her. He submits that the search should have been on CCTV as it happened at the front door. He says that he asked her ‘why’ and she said that he ‘might have taken something.’ He said that he had to open his bag to prove his innocence and he was really embarrassed and humiliated by this. He said that he ‘felt terrible.’ He submits that his bag was in the canteen throughout the shift except for his break when he went outside to get some food. He submits that he could not have put anything in his bag and submits that this was done to insult him. He submits that he was singled out in this regard, and that coupled with the racially based comments made at him, and the treatment to which he was subject throughout his shift constitutes race-based discrimination.

On Cross-examination

On cross-examination, the Respondent’s position was put to the Complainant, i.e. that it was denying the allegations in their entirety. It was put to him that the store manager had complained to his boss about him, outlining that she was not happy with his work that day. She had outlined in an email to his boss perceived deficiencies in his work on the day - that he had shown up late, that he walked off the floor to use the toilet without letting anyone know, that he was using his phone during the shift – and that she had requested that he not be assigned to that store again. [Adjudication Officer’s note: This witness was not proffered.] The Complainant disputed this. He pointed out that in order to use the toilet, he needed the key to access the toilet - it was a fob system, so he had to get the fob from a staff member - and he, therefore, could not have used the toilet without notifying a staff member on the floor first. He re-iterated that the reason he had his phone with him was due to his wife being ill. He disputed the allegations against him and said that he was targeted on a racially motivated basis, from the point when he arrived for his shift that day, by the store manager in question. The Respondent’s representative put to the Complainant that he had not shown up on time and was not available to properly fulfil his duties, on the day in question, and therefore, had not fulfilled the requirements of his job. It was put to the Complainant that his allegations occurred only subsequently to the store manager’s complaint about him.

The Adjudication Officer, at the hearing, enquired in relation to an ES1 form. Mindful that the Complainant was self-represented, the Adjudication Officer explained that there was dispute as to which was the correct legislation under which this case could be taken, but that if it were taken under the Equal Status Act 2000, typically, an ES1 form would have been filed, and she did not see one in the file, had the Complainant filed an ES1 form? The Complainant outlined that he had. The Complainant said that he had sent an ES1 form (in line with the Equal Status Act 2000) straight away; that he did so having spoken to the WRC’s Information Service subsequent to the incident; and that he sent the ES1 form addressed to the store where the incident had occurred, for the attention of the manager against whom he had made the allegation. Having waited a month for a response (as per the ESA) and having received no response, he filed a WRC claim. The incident was alleged to have occurred on 19 December 2021 – the Complainant’s shift finished at approximately 6 pm. The WRC complaint was filed on 20 January 2022.

As per the Respondent’s written submissions:

PRELIMINARY ISSUES

The Complainant has submitted a complaint under Section 21 of the Equal Status Act, 2000 for adjudication by the Workplace Relations Commission (WRC). The Respondent submits that the matter does not properly come within the Equal Status Act 2000, and requests that a preliminary determination be made in respect of same.

In support of that submission, the Respondent cites Employee v Employer UD969/2009, a case in which the Employment Appeals Tribunal was asked to make a decision on a preliminary matter first before moving to hearing the substantive case and given the significant preliminary points raised, the Tribunal heard the preliminary matter first and reached a decision on same. The Respondent also cites the case of Bus Eireann v SIPTU PTD8/2004, in which the Labour Court indicated that a preliminary point should be determined separately from other issues arising in a case ‘where it could lead to considerable savings in both time and expense’ and where the point was ‘a question of pure law where no evidence was needed and where no further information was required.’

1.       Incorrect Legislation

On the matter pertaining to the claim under Section 21 of the Equal Status Act, 2000 the Respondent submits that overall, the claim is misguided in law and has no locus standi. The Equal Status Acts 2000-2018 ('the Acts') prohibit discrimination in the provision of goods and services, accommodation and education. The Respondent submits that the Complainant was not denied access to any goods or services from the Respondent, rather the Respondent submits that the Complainant provided a service to the Respondent as an employee of a third-party provider engaged by the Respondent, in a commercial relationship.

The Respondent submits that the complaint form submitted by the Complainant does not make reference to any such denial in access to goods or services and as such, there are no claims arising and the complaint respectfully must fail. As a result, the Respondent requests that the claim be dismissed.

In support of this, the Respondent cites:

Farley v Ireland [1997] IESC 60:  “So far as the legality of matters is concerned frivolous and vexatious are legal terms. They are not pejorative in the sense or possibly in the sense that Mr Farley may think they are. It is merely a question of saying that so far as the plaintiff is concerned if he has no reasonable chance of succeeding then the law says that it is frivolous to bring the case.” 

“Similarly, it is a hardship on the defendant to have to take steps to defend something which cannot succeed, and the law calls that vexatious.”

The Respondent further cites Fay v Tegral Pipes limited and Ors [2005] 2 IR 261, wherein, in 2005, McCracken J. reiterated this in stressing that the real purpose of the courts inherent jurisdiction to dismiss frivolous or vexatious claims was firstly, to ensure that the courts would be used only for the resolution of genuine disputes and not for ‘lost causes’ and, secondly, that parties would not be required to defend proceedings which could not succeed.

It submits that the terms “frivolous or vexatious” does not, as noted by Birmingham J. in Nowak, necessarily carry any pejorative connotations but is more concerned with the situation where the litigation (or in this instance, application) can be described as futile, misconceived or bound to fail. 

2.       No Employment Relationship

Without prejudice to the foregoing (the Respondent’s position in relation to the ESA 2000), if the Adjudication Officer allows the claim to be heard under the Employment Equality Acts, the Respondent submits the following:

The Employment Equality Act allows claims to be taken for those who allegedly are discriminated against by their “employer, prospective employer, employment agency, vocational training or other bodies.” Under section 2 of the 1998 Act, an employer is defined as being, in relation to an employee, the person with whom the employee has entered into or for whom the employee works under (or, where the employment has ceased, entered into or worked under) a contract of employment.

The Respondent submits that it is not, nor has it ever been, the Complainant’s employer for the purpose of the Act. It further submits that this is not disputed by the Complainant who has references to his employer in his own claim form.

The Respondent cites Moyne Veterinary Clinic v Natasha Nowacki, in which the Labour Court examined whether an independent contractor could be engaged under a contract of employment with the third-party service user for the purposes of the 1998 Act. Section 2 of the 1998 Act defines a contract of employment as: - 

“‘contract of employment’ means, subject to subsection (3) —

(a)  a contract of service or apprenticeship, or 

(b)  any other contract whereby —

(i)             an individual agrees with another person personally to execute any work or service for that person, or 

(ii)           an individual agrees with a person carrying on the business of an employment agency within the meaning of the Employment Agency Act 1971 to do or perform personally any work or service for another person (whether or not the other person is a party to the contract), whether the contract is express or implied and, if express, whether oral or written.”

Section 2 subsection 3(d)(i) provides: - 

“References in this Act to an employee shall be construed as references to the party who agrees personally to execute the work or service concerned and references to an employer as references to the person for whom it is to be executed”. 

In examining the above provisions, the Labour Court held that employment under a contract of service is not a condition precedent to locus standi under the Acts. The ADE/20/30 3 definition of “contract of employment” for the purposes of the Acts is broad and brings within its ambit a person employed on “any other contract” provided that the person is engaged to personally carry out the services. The Court concluded that: 

“Having considered the various tests, the Court is satisfied that that contract was one which can justifiably be described as one where the Complainant agreed “personally to execute” the work assigned to her by the Respondent. Accordingly, the Court is satisfied that, taking the entirety of the relationship into account, the Complainant was employed by the Respondent on a contract of employment and therefore is covered by the broad definition under Section 2 of the Acts.” 

The Equality Tribunal similarly held in Killally v ESB Networks “that the contractual relationship between the parties in the case on hand is not comprehended by the provisions of S. 2(b)(i) of the Acts, in that services did not have to be provided ‘personally’ within the meaning of the subsection.”

The Equality Tribunal concluded that:“[l]ooking at the totality of the evidence … it is not even the case that the complainant would have had an obligation on him to perform this contract for services personally. Accordingly, I find that the complainant was not, at the time of the events which gave rise to the complaint on hand, an employee of the respondents within the meaning of the Acts.” 

While the Respondent acknowledges the broad scope of the Acts, it cannot be said that it engaged the Complainant under a contract of employment on the basis of the tests outlined in Moyne Veterinary Clinic. The Respondent did not enter into any agreement with the Complainant personally to carry out the services. The Agreement under which the Complainant carried out services was between the Respondent and the Complainant’s employer.

With regard to the remaining tests identified in Moyne Veterinary Clinic, namely the level of control, integration and mutuality of obligation between the parties, the Agreement between the Respondent and Complainant’s employer (the “Agreement”) demonstrates that employees of [Name of Security Firm Redacted] who carry out work at the Respondent’s Cork location, and other locations across Ireland are at all times employees of [Name of Security Firm Redacted]. 

The Respondent submits that the Complainant was engaged on a contract of employment with [Name of Security Firm Redacted] and paid by [Name of Security Firm Redacted]. Furthermore, in the formal complaint submitted to the Respondent by the Complainant, on 20 January 2022, the Complainant states that he was “employed by [Name of Security Firm Redacted].”

The Code of Practice on Determining Employment Status provides that “An independent contractor for services is merely an accessory to the business and, thus, not an employee.” At all times, the Respondent entered into commercial arrangements directly with the employers of any third-party contractors and did not have an employment relationship with any direct employees of any contractors including the Complainant.

The Respondent submits that it is patently illogical that the Complainant would on the one hand accept that the Complainant is an employee of [Name of Security Firm redacted] and on the other hand seek to attribute employment status to an entirely different legal entity which had no direct express or implied contractual relationship with the Complainant. In these circumstances, the Respondent submits the within complaint has not been properly referred to the WRC. It respectfully submits that it therefore does not have jurisdiction to hear it and the matter should be disposed of, on this preliminary basis, without the need for substantive hearing. 

Without prejudice to the foregoing and in the alternative

Background to the Claim

On 19 December 2022, the Complainant was assigned by his employer to the Respondent’s [Street Location redacted] site in Cork city as a Security Guard. The manager on site at the time had several issues with the Complainant on the 19 December 2022 which were set out in an email to the Complainant’s employer that evening at 11:01pm. The Respondent submits that the Complainant arrived late to the Respondent’s site - he was due to begin at 12pm however arrived at 12:30pm. The Respondent submits that the Complainant repeatedly left the shopfloor of the Respondent’s site without informing the necessary personnel so adequate cover could be arranged [Adjudication Officer’s Note: The store manager who made this allegation no longer works for the Respondent business and was not proffered as a witness. A copy of the email sent by her on 19/12/2022 at 11.01 pm, detailing her complaints, was submitted.]

The Respondent submits that as per normal company policies, the Complainant was searched as he left the store. (A copy of the Respondent’s Right to Search Policy, from its Employee Handbook, was submitted.) Due to these issues outlined in the complaint, the Respondent submitted a complaint with the Complainant’s employer and requested that the Complainant was not placed on their site again.

The Complainant submitted a WRC complaint on 20 January 2022, alleging discrimination occurred while on the Respondent’s site on 19 December 2021. The Respondent received this complaint form on 28 January 2022. On receipt of this WRC Complaint, the manager at the time who is no longer with the Respondent, provided a statement via email about the events on that day and denied the allegations made in the Complainant’s complaint.

The Respondent highlights the time-line in this case, in particular, that the manager in the Respondent’s store made a complaint to the Complainant’s employer; the Complainant then made a complaint in respect of the behaviour of the manager.

Legal Arguments

Prima Facie Case of Discrimination & the Burden of Proof

The Respondent submits that it has been the well-established practice of the Equality Tribunal and the Labour Court to require a Complainant to present, in the first instance, facts from which it can be inferred that he was treated less favourably than another person is, has been, or would be treated, on the basis of the discriminatory ground cited.

The Respondent cites the Labour Court which has stated that its jurisprudence in this matter stems from the Court’s analysis in Southern Health Board v Mitchell, DEE011, [2001] ELR 201, where the Court stated:

“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 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”.

The Respondent cites the Labour Court case of Margetts v Graham Anthony & Company Limited, EDA038, in which it stated that the evidential burden must be discharged by the Complainant before a prima facie case of discrimination can be said to have been established. The Labour Court stated 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.”

The Respondent submits that it is only when the Complainant has discharged this burden to the satisfaction of an Adjudication Officer that the burden shifts to the Respondent to rebut the inference of discrimination raised. The Respondent submits that the Complainant in his complaint of 28 January 2022 has failed to discharge this burden of proof and, consequently, the claim cannot succeed.

The Respondent submits that direct discrimination is defined as occurring where one person is treated less favourably than another is, has been or would be treated and that person is of a different race, gender, marital status, family status, sexual orientation, religious belief, age, disability or membership of the travelling community. Direct discrimination consists of two elements. The first is the less favourable treatment of the individual making the complaint; the second is the existence of discriminatory grounds for that treatment. Both elements must be satisfied for a claim of discrimination to succeed. The Respondent submits that the Complainant has not clearly identified another person who in comparison he can argue he had been treated less favourably than or would be treated. Thus, the Complainant has provided no evidence of direct discrimination on grounds of race. Secondly, the Complainant has also failed to establish the existence of race grounds for that treatment.

The Respondent submits that indirect discrimination is deemed to occur where an apparently neutral provision puts persons of a particular race at a particular disadvantage compared with other employees. The Respondent submits that there is no evidence to show that the Complainant has been indirectly discriminated against either.

The Respondent submits that the Complainant states that he was discriminated against on the race ground by the Respondent’s manager, however made no complaint to the Respondent while he was onsite. The Respondent also received no complaint in relation to this from the Complainant’s employer with whom the Respondent has a commercial agreement. As per the email response from the ex-manager from the Respondent, and in line with company policies, the Respondent submits that searching the Complainant was in line with the Respondent’s procedures. The Respondent has treated all security officers who are placed on site as per the commercial agreement the same, and all are subject to search upon leaving the premises. The Respondent submits that the Complainant has not provided any evidence that, on the balance of probabilities, he had suffered racial discrimination on the Respondent’s site. The Respondent submits that it has demonstrated through the written responses of the people involved who are no longer with the organisation, that he was not treated any differently than others security officers placed on site.

In summary

The Respondent submits that there is no valid complaint under the Equal Status Act, 2000 as no goods or services were supplied by the Respondent to the Complainant.

The Respondent submits that it is not the Complainant’s employer for the purposes of the Employment Equality Act.

The Respondent submits that even if the Respondent has a case to answer under either Act, no prima facie evidence of discrimination has been provided such as to switch the burden of proof.

The Respondent submits that if such evidence can or will be provided at hearing, the Respondent has demonstrated that at all times that the Respondent acted in line with the normal expectations of any third-party security guard and simply required him to perform the duties which his employer had been contracted to provide onsite.

The Respondent submits that when the Complainant failed to supply these services, his employer was asked to cease the engagement, a decision which was not disputed by either the Complainant or his employer at the time.

At the hearing

Additionally, the Respondent called two witnesses to give evidence, at the hearing – Ms. B., a HR Manager and Ms. D., a Retail Risk Business Partner (Loss Prevention) from the Respondent business. Neither witness worked at the store where the incident was alleged to have occurred – both work in ‘shared services’; and as the Respondent business was submitting that it had no prior knowledge of any alleged incident up until receipt of the WRC complaint, it was not in a position to address/respond to some of the aspects of the Complainant’s allegation as it might otherwise have done, had it been on notice of the complaint. Furthermore, the person against whom the allegation had been made had since left the Respondent business and obtained employment elsewhere. That person was not proffered or produced as a witness.

Witness No. 1 – HR Business Partner (HRBP) from the Respondent Business

The HR Manager outlined the Respondent business’ usual processes in respect of handling a complaint received, of this nature. She outlined that there would have been an internal investigation conducted had the Respondent business been aware of the complaint, that the CCTV from the day would have been preserved and the logs examined. She explained that as the company was not aware of the complaint, none of its usual processes could be followed, and she expressed surprise and disappointment that the complaint had got this far (i.e. to the WRC) without the company having had an opportunity to investigate or address it. She emphasised that the company had processes in place for dealing with situations such as this and would have triggered those processes had it been on notice of the allegation.

On cross-examination:

The Complainant, who was representing himself, challenged the witness in relation to the way he alleged he had been treated. He put to her that the behaviour to which he was subject was humiliating, in particular he objected to being questioned about going to the toilet. He further explained that on the day in question his wife was ill and explained that was the reason he had been using his phone. The Complainant put the point about the toilet key and access to the toilet to the witness – that he could not have accessed the toilet without notifying a staff member, because he had to get the key from them – which was accepted. The witness could only address typical procedure as opposed to what occurred on the day, as she was not present, and no investigation subsequently took place.

Witness No. 2 – Retail Risk Business Partner from the Respondent Business

The procedure in relation to searches was outlined, by the employee from the Loss Prevention section of the business. An excerpt from the Respondent’s handbook in relation to searches of employees was submitted, as part of the Respondent’s documents. It was explained that even though the Complainant, as a security guard, would be stationed at the front door, he was supplied with a locker (which was within the Respondent business) to store his belongings, and he would have had access to the canteen (also within the Respondent business) to eat his lunch. The fact that a log of all searches would typically have been kept at each store, was outlined, and that it would contain the date, time, who was searched, by whom, the nature of the search and whether anything had been found. No logs had been examined or submitted, as no investigation had been conducted, as the Respondent was not on notice of the complaint prior to the WRC complaint being filed. 

The Adjudication Officer, at the hearing, allowed the Respondent company an opportunity to examine its logs for the relevant timeframe, and to submit either an excerpt (if any), or alternatively a short submission stating that it had conducted the search of its logs for the relevant time period and found nothing, within a prescribed time-frame after the hearing. The Respondent availed of that and submitted an excerpt of the log for December 2021, within the timeframe prescribed by the Adjudication Officer – it records nothing in relation to the Complainant. The log indicated three searches had taken place, one on December 5th, one on December 6th and one on December 8th. None related to the Complainant. None related to December 19th. It was accompanied by a short submission, which set out that “during the Christmas busy season, search records were not kept.” It was further submitted that the company’s search records pertain to“in depth searches” and not “daily bag searches which occur at the door of the premises.” [Adjudication Officer’s Note: This is at odds with the evidence which was given at the hearing.]

For completeness, no copy of the service-level agreement between the Respondent and the security company employing the Complainant was produced or submitted by the Respondent.

I accept the Complainant’s cogent, uncontested, and unprompted evidence, that he sent an ES1 form (in line with the Equal Status Act 2000) immediately after the incident; that he did so having spoken to the WRC’s Information Service subsequent to the incident; and that he sent the ES1 form addressed to the store where the incident had occurred, for the attention of the manager against whom he had made the allegation. He received no response within the one-month prescribed timeframe, and then filed this WRC complaint. The relevant dates support that timeline.

I also accept the Respondent’s submission that it has no record of receiving the ES1 form, and therefore did not respond to the Complainant (with an ES2 form, or at all). I further accept the Respondent’s submission that, had it been on notice of the ES1 form, it would have conducted an internal investigation in line with its own processes, and would have preserved the CCTV. I note and accept the Respondent’s surprise and disappointment that this complaint had made it ‘this far’, i.e. to the WRC, without it having an opportunity to address the matter. I note that a long-standing employee - the manager accused of racial discrimination – left a job of many years’ tenure, for another job of her own volition, subsequent to this incident and subsequent to the Complainant sending her ES1 form, addressed to her, at her place of work. She was neither proffered nor produced as a witness by the Respondent, at the hearing.

I conclude that this claim is properly under the jurisdiction of the Employment Equality Act 1998, not the Equal Status Act 2000, and is properly before the WRC, and that I have the jurisdiction to hear the case. The narrative of the Complainant’s complaint, as set out in this complaint form (which is not a statutory form), is sufficient in that regard in line with the Supreme Court case of County Louth VEC V. Equality Tribunal (Notice Party Mr. Pearse Brannigan) [2016] IESC 40.

I find that the Complainant, and the complaint as described, come within the provisions of the Employment Equality Act 1998, which is a remedial social statute, and which of necessity has broad application in order to give reality to the European law jurisprudence underpinning it.

I find that the evidence the Complainant adduced of the direct facts of his complaint, shifts the burden of proof to the Respondent, in line with s. 85A of the Employment Equality Act 1998; and I find that the Respondent has failed to “prove the contrary” in line with the requirement of the s. 85(A)(1).

I find, on the balance of probabilities, that the Complainant was, in the course of his employment, the subject of direct racial discrimination by an employee of the Respondent, and that the Respondent is vicariously liable for the actions of its employees.

I find that it is reasonable to draw inferences from the timeline as set out, in relation to the Complainant’s evidence about the ES1 form. I find his evidence in relation to the ES1 form he sent to be particularly cogent and credible.

I find the Respondent’s assertion that its relationship with the Complainant does not come within the broad swathe of employment relationships covered by the scope of the Employment Equality Act while simultaneously asserting a level of control in how the Complainant carries out his duties, to be incorrect, e.g. the Respondent sought to direct the Complainant as to when he could take breaks, that he was to notify a staff member if he was leaving his post to use the toilet (which he had to obtain a key from a staff member in order to access) and searched him in line with its search policy applicable to employees, on his exit from the store at the end of his shift. In that regard, the Respondent is relying upon (and submitted a copy of) its search policy from its Employee Handbook applicable to its employees, and to which it says the Complainant is legitimately subject while carrying out his duties as a security guard assigned to one of its stores. I further note that the Respondent did not assert that the Complainant had issued proceedings against an incorrect Respondent, merely that it had no responsibility to him under either the Equal Status Act 2000 or the Employment Equality Act 1998. I also note it did not seek to adjoin the Complainant’s employer as a Respondent to the proceedings.

I find that the fact-pattern outlined by the Complainant finds a remedy available under the broad ambit of the Employment Equality Act 1998 and before the WRC.

Having carefully examined the scope and definitions of the Employment Equality Act 1998, I have been guided by the following (as per the Act):

·       “employee”, subject to subsection (3), means a person who has entered into or works under (or where the employment has ceased entered into or worked under) a contract of employment;

·       “employer”, subject to subsection (3), means, in relation to an employee, the person with whom the employee has entered into or for whom the employee works under (or, where the employment has ceased, entered into or worked under) a contract of employment;

·       “employment agency”, (when not defined by reference to the Employment Agency Act, 1971) means a person who, whether for profit or otherwise, provides services related to the finding of employment for prospective employees or the supplying of employees to employers;

More broadly, the Employment Equality Acts have also been found to apply to self-employed contractors and to partners, “in order to give reality to Article 14 of the Recast Directive 2006/54/EC and Article 3 of the Framework Directive 2000/78/EC, both of which make it clear that the principle of non-discrimination extends to self-employed persons. The Race Directive 2000/43/EC also brings self-employment within the scope of Article 3. The [Employment Equality] Acts are intended to implement these three Directives and must be interpreted in conformity with each of them. It follows that the broad definition of a “contract of employment” as defined by the Acts must be interpreted as intended to bring self-employed persons within the ambit of the Acts so as to bring the Acts into conformity with the personal scope of the Directives.” (as per the Labour Court, in the case of Moyne Veterinary Clinic V. Natasha Nowacki).

I am bound to make an award that is ‘effective’, ‘persuasive and dissuasive’ in line with the European law jurisprudence in this area.

I find for the Complainant.

I find that this complaint is well-founded.

I direct the Respondent to pay the Complainant €1,500 compensation within 42 days of the date of this decision.

Employment Equality Act; race ground; third party service level agreement;