Complainant

Respondent

Parties

Ricardo  Guerra

Abtran Ltd.

Representatives

  Self-Represented

James Cleary IBEC

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-00060465-001

09/12/2023

The Complainant is employed by the Respondent in the role of Advisor since 15 Feb 2018 and is of Peruvian heritage. The Respondent is a provider of Customer and Business Process Management and Outsourcing  services. The Respondent has offices in Cork and Sligo and operates in regulated sectors including Energy, Utilities, Financial Services and Government, through designing, implementing, and delivering end-to-end service solutions.

 The Complainant claims that he has been discriminated against as a result of his race. There are three dimensions to his complaint; lack of promotion, victimisation and harassment on the grounds of race. During the hearings, the Complainant withdrew an original complaint of indirect discrimination

 The Respondent refutes any aspect of discrimination and denies these claims in full.

Discrimination – Lack of Promotion.

The Complainant gave evidence of applying for seven positions on dates referred to below:

1.       Forecasting and Scheduling Manager on 6 May 2022 (Job 1)

2.       Customer Service Manager based in Sligo – 24 October 2023. (Job 2)

3.       eFlow Operations Manager – 19 October 2023 (Job 3)

4.       Operations Manager Electric Ireland  - 19 October 2023 (Job 4)

5.       Local Property Tax Team Lead – 19 October 2023 (Job 5)

6.       Team Leader Irish Life Healthcare – 19 October 2023 (Job 6)

7.       Electric Ireland Team Leader Waterford – 18 October 2023 (Job 7)

The Complainant’s case is that he was more than qualified for these positions but that Irish people in the main were successful and that this amounted to discrimination on the grounds of race. He believed he had all the requisite experience and qualifications for the roles but was not called for interview.

Harassment:

The Complainant stated that in a five-month period between March 2023 and July 2023 he had not received a software application that left him unable to do his job and despite protestations to the IT Department and others, he felt isolated and excluded and believes this behaviour by Respondent staff was attributed to his race.

In cross examination by the Respondent, the Complainant said he applied for six jobs in two days in October 2023 because it offered more challenges and opportunities to him.

Mr Pat O’Connell, Team leader gave evidence on behalf of the Respondent. He denied saying to the Complainant that Irish people were more favoured when it came to senior management positions and pointed to the diversity of the workforce and the fact that  non-Irish people held senior management positions.

Mr. Terence Whelan, the Road Safety Authority Account Manager, gave evidence. Concerning the harassment allegation, he explained that when the Complainant reported the software issue with his computer, he promptly resolved it. He asserted that the software issue could not be attributed to racism, as it was crucial for everyone in his department to be fully operational.

Ms Ava Fitzgerald, HR Department gave evidence of the  application process for the seven jobs at issue. The redacted  matrix charts for each position were exhibited. The witness stated that the Respondent did not ask applicants for details of their nationality but where such information was provided theethic profile of candidates were as follows: Irish, Hungarian, Nigerian, Brazilian, English, American, Polish, French, Indian and Peruvian. The following is the breakdown of the application process for each position as given in evidence by the witness, supported by exhibited documentation:

 :

1.       Job 1 was a senior management position that was unique to the business, and this was filled by an external candidate who had a senior role with  the Respondent’s competitor. The successful candidate had significant managerial experience. The Complainant along with five known nationalities had applied for the position.

2.       Job 2 was four levels above the Complainant’s role. The role required 3 years’ experience in a senior management customer service role which the Complainant did not possess therefore he did not progress to the interview stage.

3.       Job 3 required a listed number of management and budgetary experiences which the Complainant did not have. A Polish candidate was brought forward for interview on the basis they had four modules of “essential manager” training completed. This is training obtained after an employee  has completed  the internal  “Inspire” programme which the Complainant did not apply for at the material time. . Amongst the known nationalities, a French candidate was also unsuccessful due to not having trained in the “Inspire” programme.

4.       Job 4 followed the same pattern as Job 3 for the Complainant. He had not the requisite management training/experience. Of the known nationalities, unsuccessful Irish and Australian candidates also did not possess the requisite training/experience.

5.       Job 5 was a six-week contract and the Complainant, and the witness gave evidence that the successful candidate had to have the specific advanced  experience in the area of Local Property Tax, which the Complainant did not possess. Two Indian employees and one British employee were not brought forward for interview.

6.       Job 6 required specific Irish Life Health experience and Accredited Product Advisor (APA) qualification. The Complainant had neither the experience nor qualification, unlike the successful candidate who had both, and who had also completed three modules of the Inspire programme. The Complainant had not completed any module of this programme at the relevant time.

7.       Job 7 was fully onsite in Waterford on a short-term basis and a candidate in Waterford was required with specific Team Leader experience as they would have site lead responsibilities. A decision was made to go external with this role. The successful candidate previously worked on the Electric Ireland Account, and during that time he was employed as an Advisor and Product Specialist within the Electric Ireland operation. The Complainant was based in Cork and had not the specific experience required for the role.

Noreen O’Sullivan, Head of HR, gave evidence. She described how the Inspire management training programme worked within the Respondent company and described it as a  highly desirable qualification   for progression internally  within the  Company. She listed a number of senior management positions that were held by non-Irish staff. She  stated  that 30% of management  positions were held by non-Irish staff, though non-Irish staff made up approximately 25% of the overall staff number.

In cross examination the witness did not accept that the Complainant was barred in any respect from enrolling in the Inspire programme, saying that every employee had the opportunity to do so. She said that the Complainant had only enrolled for the programme after he was unsuccessful for the advertised positions and had yet to complete a single module of the course.

Legal Argument: Summary of Respondent’s Position:

The Respondent contends that the Complainant has not established a prima facie case of discrimination as required by precedent in relevant  cases  set by the Labour Court. Specifically, the Complainant must present facts from which it can be inferred that he was treated less favourably on the discriminatory grounds cited. This principle is based on the Labour Court's analysis in Southern Health Board v. Mitchell, DEE011, [2001] ELR 201 and reaffirmed in Flexo Computer Company v. Kevin Coulter, Determination No 13/03. Only if these primary facts are established does the burden shift to the respondent to prove non-discrimination. In Margetts v. Graham Anthony & Company Limited, EDA038, the Court emphasised that merely falling within a discriminatory ground is insufficient; the complainant must provide additional facts to infer discrimination.

The Respondent submits the Complainant has not identified a comparator, which is essential to demonstrate less favourable treatment. The Respondent argues that without a comparator, the claim of discrimination on grounds such as race cannot be substantiated.

The Complainant alleges discrimination in promotion decisions. The Respondent contends that  as demonstrated in Labhras S. de Buitleir v. Revenue Commissioners, DEC-E2011-107, the burden of proof lies with the Complainant to show a prima facie case of discrimination, which the complainant has not done. The Respondent argues that the complainant lacked the necessary qualifications and experience for the roles applied for, unrelated to any discriminatory grounds.

The Respondent argues that the selection process was fair, citing The Dept. of Health and Children EDA 0412 which emphasised the objectivity and honest application of selection criteria as approved by the Labour Court, and other cases including Employee v Department of Foreign Affairs DEC-E2002-038 and Byrne v FÁS DEC–2002-045.

The Respondent submits the Complainant lacked the necessary experience for the roles.

Statistics showed diverse nationalities among interviewed candidates. Interview panels included skilled managers. The selection policy was not discriminatory, with objective criteria applied logically.

Regarding victimisation/harassment, the Respondent cites Section 74 (2) of the Employment Equality Act and cases like Moriarty v Duchas DEC-E2003-013 and Department of Defence v Barrett EDA 1017. The Respondent argues that the Complainant failed to show adverse treatment linked to a discrimination complaint. The Respondent maintained that the decision not to interview was based on the Complainant’s lack of relevant qualifications and experience, not on race.

Allegations of victimisation/harassment  under Section 74(2) of the Employment Equality Acts 1998-2015 are denied by the Respondent.  The Respondent asserts that normal management actions were misinterpreted as victimisation/harassment by the Complainant, who has not followed reasonable management instructions and has not been subjected to unfair treatment.

The Respondent concludes that the Complainant has not met the burden of proof required to establish a prima facie case of discrimination on the grounds of race or any other protected characteristic under the Employment Equality Acts 1998-2015.

The Complainant alleges racial discrimination concerning his employment terms and conditions. He states that despite applying for numerous jobs and considering himself highly qualified, he was unsuccessful because he is Peruvian, while Irish candidates were preferred. Furthermore, he claims he was victimised and harassed by the Respondent because he was Peruvian, which was further  in breach of the Employment Equality Acts 1998-2015 (the Acts). The Respondent contends  the Complainant did not have the required experience for the positions and that the evidence and data supplied showed a  diversity of nationalities among the candidates interviewed.

Applicable Law:

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 cited. Section 85A of the Acts states as follows:

(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.

In Arturs Valpeters v Melbury Developments Ltd 21 (2010) ELR 64 the Labour Court gave guidance on how the above section is to be interpreted.:

“Section 85A of the Act provides for the allocation of the probative burden in cases within its ambit. This requires that the complainant 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.”

When  considering the primary facts adduced by the Complainant I must  take into consideration the Respondent’s contrary evidence, when determining whether the burden of proof should shift to the respondent. In the Labour Court case of Dyflin Publications Limited v Spasic EDA0823, it was stated that:-

“….the Court should consider the primary facts which are relied upon by the complainant in their proper context. It also indicates that in considering if the burden of proof shifts the court should consider any evidence adduced by the respondent to show that, when viewed in their proper context, the facts relied upon do not support the inference contended for by the complainant.”

In  Graham Anthony & Company Limited v Mary Margetts  EDA 038  the evidential burden which must be discharged by the Complainant before a prima facie case of discrimination can be said to have been established was further outlined by the Labour Court when it stated:

“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 occurred.”

The Acts  define discrimination under section 6  as follows:

(1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where—

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

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned,

(b) a person who is associated with another person—

(i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and

(ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination.

(2) As between any two 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”) …

Harassment:

Section 14(A)(7) of the Acts provides:

(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.

Victimisation:

Section 74(2) of the Acts provides:

 For the purposes of this Part victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to—

(a) a complaint of discrimination made by the employee to the employer,

(b) any proceedings by a complainant,

(c) an employee having represented or otherwise supported a complainant,

(d) the work of an employee having been compared with that of another employee for any of the purposes of this Act or any enactment repealed by this Act,

(e) an employee having been a witness in any proceedings under this Act or the Equal Status Act 2000 or any such repealed enactment,

(f) an employee having opposed by lawful means an act which is unlawful under this Act or the said Act of 2000 or which was unlawful or any such repealed enactment, or

(g) an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs.

Job Applications:

The Complainant applied for seven jobs that are the subject of this element of his complaint. He applied for Job 1, which was a senior management position, on 6 May 2022, and his application was rejected on 10 May 2022. As this alleged discrimination is outside the 6-month limit for submission of a complaint, and outside the further 12-month extension possible on the grounds of reasonable cause, I did not deem it necessary to investigate this specific job application. The Respondent had shown evidence that it was a very senior position requiring 5-plus years at a senior management level, which the Complainant did not possess.

The Respondent gave convincing evidence, backed up by tables and redacted candidate profiles, to show that the Complainant did not have the specific experience nor proficiencies required for the jobs that were advertised by the Respondent. Moreover, where candidates had disclosed their nationality, the Respondent was able to convincingly show, without rebuttal, that diverse nationalities, including Irish, either progressed above the Complainant in the selection process or similarly did not progress; thus, establishing a principle that race was not a factor in the selection process. The HR Director gave evidence that the proportion of non-Irish employees was approximately 25%, but that 30.65% of management roles were filled by employees from a non-Irish background. The Complainant had argued that he was blocked from applying for the Inspire programme by a team leader. I found this to be a mere assertion and he did not put it to the team leader witness when he had the opportunity to do so. I note also that the Complainant applied for the six relevant jobs within a two-day period. I can understand the frustration of the Complainant with his lot. The application for numerous jobs was a genuine reflection of the frustration he felt as an ex-Peruvian Naval Officer in possession of a primary engineering degree and an MBA. Nevertheless, I am satisfied that he did not possess the specific vocational skills needed for the positions advertised. Having considered the evidence from both sides in this matter in line with Dyflin Publications Limited, I conclude that the Complainant made mere assertions without providing the primary facts to show that race was a determining factor in his unsuccessful applications for promotion.

Victimisation:

The key elements of victimisation provided for in section 74(2) of the Acts can be summarised as follows:

·       The employee had taken action of a type referred to at section 74(2) of the Acts

·       The employee was subjected to adverse treatment by the Respondent, and

·       The adverse treatment was in reaction to the protected action having been taken by the employee.

·       There must be a causal connection between the taking of proceedings and any alleged treatment by the employer.

The Complainant accepted that he never initiated an equality-based complaint, formal or otherwise, with the Respondent in the cognisable period required by the Act, nor could he point to incidences of victimisation as defined under the Acts before he submitted his complaint to the WRC. Therefore, I find that he was not victimised by the Respondent.

Harassment:

The Complainant accepted in evidence that he was never subjected to derogatory comments or unacceptable behaviour that could be described as explicitly  racial in nature. However, he did raise an issue about a period between March 2023 and July 2023 when he did not have access to software, which limited him from conducting his work. He stated that he felt isolated and excluded but did not give evidence as to why he asserted that this problem was racist in nature. Mr. Terence Whelan, the Account Manager for the Road Safety Authority, provided testimony regarding the allegation. He explained that when the Complainant reported a software issue with his laptop, he promptly resolved it. He emphasised that the software issue could not be attributed to racism, as it was essential for everyone in his department to be fully operational. I do not doubt that the Complainant had an issue with his computer, but he did not submit any primary fact that could infer racism as being the motivation for the glitch, nor did he give evidence that he pursued the issue as a complaint through the Respondent’s harassment procedures on the grounds of race. I therefore find that the Respondent did not harass the Complainant contrary to Section 14(A)(7) of the Acts.  

Based on the reasons mentioned above regarding the various dimensions of the Complainant’s discrimination complaint, I conclude that the Complainant did not establish primary facts from which discrimination could reasonably be inferred, contrary to section 85A of the Acts, therefore, I find that the Respondent did not discriminate against the Complainant on the grounds of race.

Employment Equality Acts 2000-2015, Promotion, Harassment, Victimisation.