Complainant

Respondent

Parties

Ilyas Barka

Google Ireland Limited

Representatives

Self-Represented

Rosemary Mallon B.L. instructed by Niamh Crotty of Lewis Silkin 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-00056420-001

01/05/2023

The Complainant commenced employment with the Respondent on the 14th March 2022 as a Senior Account Manager. He was dismissed on the 24th November 2022 following a disciplinary process. He submitted his complaint to the Workplace Relations Commission (hereinafter referred to as “the WRC”) on the 1st May 2023. The Complainant claimed that he was discriminated against by reason of being a person of colour. The Respondent refuted the allegations in their entirety and submitted that his employment was terminated due to his performance.

The Complainant read into evidence his statement set out in a letter addressed to the WRC dated the 13th November 2023.

The Complainant stated that he identified as a person of colour. He confirmed that his complaint was confined to his dismissal which he asserted amounted to a discriminatory dismissal. He stated that while the Respondent was claiming that he was dismissed on the 24th November 2022 due to his performance following the implementation of a Performance Expectation Plan (PEP) his case was that he was dismissed because he was a person of colour. He stated that he was not claiming that his dismissal arose because of his race, nationality, ethnic or national origin, that these were matters being raised by the Respondent and he denied that he selected the “race” box on the WRC complaint form.

He confirmed that his employment was subject to a probationary period, that the probationary period was extended and that the Respondent put in place a PEP. He stated that amongst his team he was singled out and blamed for the mistakes of his German colleagues because he was a person of colour. He claimed that he outperformed the rest of his team and that despite being the best performer in his specific region and industry there was an attempt by the Respondent to isolate the only person of colour.  

Cross-Examination of the Complainant    

The Complainant accepted that given he referred his complaint to the WRC on the 1st May 2023 and he was alleging that the discriminatory act was his dismissal on the 24th November 2022 the relevant period was from the 2nd November 2022 until the 24th November 2022.

When asked about his ethnic origin and the basis upon which he identified and defined himself as a person of colour the Complainant stated that he was not going to answer the question. The Complainant eventually stated that he was a German national of Moroccan decent through his maternal line. The Complainant again denied that he selected the “race” box on the WRC complaint form and stated that he engaged in self-identification. The Complainant stated that he worked as part of a large team and that all of his colleagues identified as white Europeans but that he self-identified as a person of colour. He named a Mr. N as a comparator. He was not aware of Mr. N’s race but stated that his parents were Spanish and, according to the Complainant, he identified as a white European. He stated that Mr. N would not attending the hearing to confirm that he identified as a white European and accepted that this was not within the knowledge of the Respondent.

He stated that the First Line Manager discriminated against him by “kicking off” the process which lead to his dismissal. By this he meant that the First Line Manager was the individual who raised concerns with the Second Line Manager and the People Consultant regarding his performance and it was the First Line Manager who was responsible for putting the Complainant through the PEP. The  Complainant accepted that at the commencement of the PEP the Second Line Manager took over as his line manager and that he did not have any interaction with the First Line Manager between the 2nd and 24th November 2024 and that the First Line Manager had no involvement in the disciplinary procedure or the decision to dismiss the Complainant. He stated that he had never told the First Line Manager about his life. While he believed that the First Line Manager was aware that he was a German national of Moroccan decent he accepted that the First Line Manager did not know and was never informed by the Complainant that the  Complainant identified as a person of colour.

He stated that the Second Line Manager discriminated against him by continuing the PEP, calling the Complainant to a disciplinary hearing and dismissing the Complainant. He accepted that while the Second Line Manager was aware that the Complainant was a German national of Moroccan decent he did not know and was never informed by the Complainant that the Complainant identified as a person of colour.

The Complainant claimed that he was discriminated by the People Consultant because she assisted the First Line Manager and the Second Line Manager throughout the PEP and disciplinary procedure. The Complainant  accepted that the People Consultant did not know anything about the Complainant’s race, colour, nationality, ethnic or national origin or that he identified as a person of colour but stated that she made the decision to put a person of colour in an unfavourable position and missed the opportunity to take over the process and keep it low key.

The Complainant appealed the decision to terminate his employment and stated that the Chair of the appeal hearing discriminated against him by margionalising and isolating the only person of colour. The Complainant confirmed that he had not met the Chair of the appeal hearing prior to appealing his dismissal and that prior to lodging his appeal the Chair of the appeal hearing did not know anything about the Complainant’s race, colour, nationality, ethnic or national origin or that he identified as a person of colour. He stated, however, that the Chair of the appeal hearing continued a pattern of unequal treatment when, having been put on notice of the fact that the Complainant believed he had been discriminated against, he upheld the decision to dismiss the Complainant because he was a person of colour.

The Complainant accepted that the Respondent had a grievance procedure and an anti-harassment policy and that he had access to them but that he did not search or look them up.

The Complainant accepted that he never used the Respondent’s grievance or anti-harassment policy and that no complaint was ever made to the HR department regarding unequal treatment on the grounds of the Complainant’s race, nationality, the colour of his skin, ethnic or national origin. The Complainant accepted that no complaint or allegation of discrimination was ever made by him prior to the 24th November 2022 when the decision to dismiss was communicated to him.

The Complainant confirmed that he was informed on the 24th November 2022 that he did not pass the probationary period and that his employment was being terminated by reason of poor performance and that he appealed that decision. He accepted that the first time that he made any allegation of discrimination against employees of the Respondent in writing was during the appeal process.  

The Complainant commenced working for the Respondent on the 14th March 2022. He was employed as a Senior Account Manager (Level 4) Large Customer Sales (German) – EU Headquarters. His role was to sell advertising products to customers and ensure that the product sold worked for the customer. His employment terminated on the 24th November 2022 after eight months while he was on extended probation.

By way of background, as early as June 2022 concerns were raised regarding the Complainant’s performance by the First Line Manager. The First Line Manager engaged with the Second Line Manager and the People Consultant. The People Consultant recommended an extension of the Complainant’s probationary period in accordance with his contract of employment and that a 60 day plan be put in place to aid in an improvement in the Complainant’s performance.

The proposal was discussed with the Complainant and on the 6th September 2022 the extension of the Complainant’s probationary period was confirmed. On the 15th September 2022 the Complainant was sent a 60 day PEP which the Complainant signed. The PEP set out in detail the areas of improvement under the specific headings and detailed the training, mentoring and management support meetings that would aid the Complainant to improve his performance.

On the 19th October 2022, midway through the PEP, the Second Line Manager had a meeting with the Complainant to discuss the Complainant’s progress and the meeting was followed up with an e-mail which confirmed that the Complainant had progressed significantly but was currently not passing the PEP.

According to the Respondent, the Complainant’s performance did not improve sufficiently and he was invited to a disciplinary hearing on the 16th November 2022. The Complainant requested that the disciplinary meeting be rescheduled to the 22nd November 2022 and on that day he was accompanied by a work colleague. The Second Line Manager and the People Consultant, were present on behalf of the Respondent and the Second Line Manager was the decision maker at the hearing. The Complainant submitted documentation for consideration at the disciplinary hearing. At the disciplinary hearing the Complainant did not raise any issue of unequal treatment or make a complaint of discrimination, whether on the grounds of his race, nationality, the colour of his skin or his ethnic or national origin.

Following the meeting, on the 24th November 2022, the Second Line Manager wrote to the Complainant with the outcome. The Second Line Manager considered the concerns raised by the Complainant, none of which related to unequal treatment or discrimination on the grounds of the colour of the Complainant’s skin. The Second Line Manager concluded that overall, he did not find the concerns raised by the Complainant had a material impact on the Complainant being able to meet the requirements of the PEP and that taking everything into account, the Complainant had not been able to meet fully the objectives contained in the PEP and, as a result, the Complainant’s employment with the Respondent  was terminated.

By e-mail dated the 30th November 2022  the Complainant appealed the decision and in his grounds of appeal he accused the Second Line Manager of not acting in good faith and of discrimination. The Respondent submitted that it was noteworthy that the Complainant never made any allegation of discrimination by the Second Line Manager or anyone else in the Respondent’s employment until after the decision to dismiss him was communicated to him and that the allegation of discrimination was at odds with the supports given by the Second Line Manager to the Complainant as evidenced in his communication to the Respondent’s HR Department on the Complainant's behalf on the 7th September 2022.

The Complainant's appeal was conducted by the Chair of the appeal hearing. The Complainant was invited to an appeal hearing by e-mail dated the 20th December 2022. The Complainant wrote, attaching a number of documents and alleging that the outcome letter had been altered. The appeal meeting took place on the 22nd December 2022 during the course of which the Complainant declined to point out how the outcome letter had been altered. He alleged that the decision to dismiss him was not based on the PEP and that he was dismissed on the basis that he was a person of colour. By letter dated the 23rd March 2023 the Chair of the appeal hearing confirmed that as part of his considerations he read the disciplinary documents which included the Complainant’s 27 page slide show presented during the disciplinary process, the Complainant’s written submission and that he met with the First Line Manager, the Second Line Manager and the People Consultant. He addressed each of the Complainant’s grounds of appeal which included the allegation of discrimination on the basis of being a person of colour. The Chair of the appeal hearing upheld the original decision to terminate the Complainant’s employment.

The Respondent submitted that the Complainant presented no facts which show that he was treated less favourably than another person employed by the Respondent on the grounds of race. Furthermore, the Complainant failed to present any facts that suggest that he was dismissed for discriminatory reasons. The Complainant has not established a prima facie case of discrimination. The Complainant has failed to shift the burden of proof and it falls to the Complainant to prove that discrimination has occurred on the grounds of race, which is denied.

The Respondent referred to section 85A of the Employment Equality Acts 1998 and submitted that the facts raised by the Complainant are not of sufficient significance to raise an inference of discrimination.

Reference was made to the key requirements in order to shift the burden of proof to the Respondent as set out in the Labour Court decision in Southern Health Board v. Mitchell DEE 1/2001 reported at [2001] E.L.R. 201 and to the decision of the Labour Court in Anthony v. Margetts EDA038.

It was submitted that the Complainant’s evidence was filled with assumptions and presumptions and reference was made to the Labour Court case of Valpeters v. Melbury Developments Limited [2010] ELR 64.

The Respondent submitted that it is for the Complainant to prove that there was a link between the alleged behaviour complained of and his race. Reference was made to the Labour Court cases of Rescon Limited v Scanlan EDA085/2008 and Eire Bus Limited v. Bonner EDA1844.

The Respondent submitted that merely because the Complainant is a particular race does not shift the burden to evidential proof to the Respondent.

The Respondent submitted that in Valpeters the Court observed that there has to be "evidence of some weight from which it could be concluded that persons of a different race or nationality were or would be treated more favourably. All that has been proffered in support of that contention is a mere assertion unsupported by any evidence."  

In relation to prima facie evidence reference was made to the Labour Court decision of Rotunda Hospital v. Gleeson DDE003/2000 wherein prima facie evidence was stated to be "evidence which in the absence of any contradictory evidence by the employer would lead any reasonable person to conclude that discrimination has probably occurred". The Complainant therefore has to not only establish primary facts upon which they will seek to rely but also that those facts are of sufficient significance to raise an inference of discrimination.

Reference was also made to Cork City Council v. McCarthy EDA21/2008.

The Respondent submitted that the Complainant raised no complaint in relation to any alleged unfavourable treatment or discrimination prior to the decision to dismiss him. He was able to access all appropriate policies and procedures on the intranet and failed to raise a grievance against either of his managers nor did he raise any form of complaint on the grounds of discrimination. The Complainant was dismissed because of performance issues and for no other reason. The performance issues were raised with the Complainant many months before his dismissal and his probation was extended as a serious indicator that his performance was not up to the standard required by the Respondent. A proper performance improvement process was put in place. The Complainant did not achieve the level of performance required and after a proper and fair disciplinary process (which included an appeal) the Complainant was dismissed. The Complainant had every opportunity to make any submissions that he wished and they were all considered.

The Respondent addressed the Complainant’s failure to identify a comparator. The Respondent submitted that the Complainant was not unfavourably treated and failed to raise a prima facia case in relation to same. Furthermore, he failed, refused and neglected to name comparators. The Complainant is required to prove that he was treated less favourably than his chosen comparator(s); if he cannot do this his claim must fail. Reference was made to the determination in Saoirse Soden v. Supervalu Harris' Supervalu (ADJ-00034460) wherein the Adjudication Officer noted that: "A comparator must be employed by the same employer as the complainant or by an associated employer. A comparator is an evidential tool. They are intended to contrast the treatment of the complainant, in respect to the matter complaint of, with that of another person in similar circumstances who does not have the protected characteristics relied upon.”

In conclusion it was submitted that the Complainant was not treated unfairly. In fact he was supported and encouraged by the Respondent to improve his performance. A clear and robust PEP was put in place. He was aware of the goals he had to achieve. He was given consistent and clear training and mentoring. Unfortunately, his performance did not improve sufficiently and he was dismissed after a fair process which included the right of appeal. It is telling that it was only after the decision to dismiss was made that the Complainant made any allegation of discrimination which is entirely unfounded.

In making these findings, I have considered the documentation submitted by the parties, the oral evidence adduced at the hearing summarised above and the oral and written submissions made by and on behalf of the parties at the hearing.

Discrimination for the purposes of this Act

Section 6 (1) of the Employment Equality Acts 1998 (as amended) (hereinafter referred to as “the 1998 Act”) states:

For the purposes of this Act, discrimination shall be taken to occur where, on any of the grounds in subsection (2) (in this Act referred to as "the discriminatory grounds"), one person is treated less favourably than another is, has been or would be treated.

Section 6 (2) provides that: as between any two persons, the discriminatory grounds are inter alia:

(h) that they are of different race, colour, nationality or ethnic or national origins (in this Act referred to as “the ground of race”),

Section 8(6)(c)of the 1998 provides that:

8(6) Without prejudice to the generality of subsection (1), an employer shall be taken to discriminate against an employee or prospective employee in relation to conditions of employment if, on any of the discriminatory grounds, the employer does not offer or afford to that employee or prospective employee or to a class of persons of whom he or she is one—

(c) the same treatment in relation to overtime, shift work, short time, transfers, lay-offs, redundancies, dismissals and disciplinary measures,

as the employer offers or affords to another person or class of persons, where the circumstances in which both such persons or classes are or would be employed are not materially different.

The Cognisable Period for the purposes of this Act

Section 77(5) of the 1998 Act states:

(a) Subject to paragraph (b), a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of occurrence of the discrimination or victimisation to which the case relates or, as the case may be, the date of its most recent occurrence.

(b) On application by a complainant the Director General of the Workplace Relations Commission or Circuit Court, as the case may be, may, for reasonable cause, direct that in relation to the  complainant paragraph (a) shall have effect as if for the reference to a period of 6 months there were substituted a reference to such period not exceeding 12 months as is specified in the direction; and, where such a direction is given, this Part shall have effect accordingly.

 (c) This subsection does not apply in relation to a claim not to be receiving remuneration in accordance with an equal remuneration term.

The complaint was referred to the WRC on the 1st May 2023. The Complainant confirmed that the date of occurrence of the discrimination to which his case relates is the 24th November 2022, the date of dismissal.

The Burden of Proof

Section 85A of the 1998 Act provides as follows:

“85A(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.”

The effect of section 85A above is to place the burden of proof in the first instance on a Complainant, to establish facts which, on an initial examination, lead to a presumption that discrimination has occurred.

The WRC and the Labour Court’s approach to this issue and the test for applying section 85A of the 1998 Act is well settled in a line of decisions of both bodies starting with the Labour Court’s Determination in Mitchell v. Southern Health Board [2001] 12 E.L.R. 201 wherein the Labour Court stated:

“the 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 where 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.”

In Minaguchi v. Wineport Lakeshore Restaurant No. EDA034 “the primary facts” were defined as follows:

“It appears to me that the three key elements which need to be established by a claimant to show that a prima facie case exists are:

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

(ii)                that she/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 Mary Margetts v. Graham Anthony & Company Limited EDA038 the Labour Court stated that “[t]he 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 Labour Court, in its decision in Arturs Valpeters v. Melbury Developments Ltd [2010] 21 E.L.R. 64, addressed the onerous nature of the burden of proof:

“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 speculations 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 proof fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.”

The Labour Court has also consistently stated that:

“The law provides that the probative burden shifts where a complainant proves facts from which it may be presumed that there has been direct or indirect discrimination. The language used indicates that where the primary facts alleged are proved it remains for the Court to decide if the inference or presumption contended for can properly be drawn from those facts. This entails a consideration of the range of conclusions which may appropriately be drawn to explain a particular fact or a set of facts which are proved in evidence. At the initial stage the complainant is merely seeking to establish a prima facie case. Hence, it is not necessary to establish that the conclusion of  discrimination is the only, or indeed the most likely, explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts”: Kieran McCarthy v. Cork City Council EDA082

Once the prima facie case is established, the Respondent must rebut the prima facie case. This will require cogent evidence.

In the instant case the Complainant stated in evidence that he was a German national of Moroccan decent who identified as a person of colour. He stated that his complaint was not based on his race, nationality, ethnic or national origin. He asserted that the termination of his employment amounted to a discriminatory dismissal on the basis that he was dismissed because he was a person of colour. The Complainant stated that four employees of the Respondent treated him unfairly as compared to his German colleagues because he was the only person of colour. The Respondent refuted the Complainant’s allegations in their entirety.

I note that the Complainant accepted that while the First Line Manager knew that he was a German national of Moroccan decent he did not know that the Complainant identified as a person of colour and that he did not have any involvement with the Complainant during the cognisable period, that while the Second Line Manager knew that he was a German national of Moroccan decent he did not know that he identified as a person of colour, that the People Consultant did not know his race, colour, nationality, ethnic or national origin or that he identified as a person of colour and finally that the Chair of the appeal hearing only met with the Complainant after his employment was terminated on the 24th November 2022, the day on which the Complainant alleges the discriminatory act occurred.   

It was common case that the Complainant was on extended probation and was engaged in a PEP to improve his performance with the support of the Respondent’s management. The Complainant did not accept the Respondent’s assessment of his performance asserting that amongst his team he was singled out and blamed for the mistakes of his German colleagues because he was a person of colour. He claimed that he outperformed the rest of his team and that he was the best performer in his specific region and industry and that there was an attempt to isolate the only person of colour. He asserted that there was a pattern of unequal treatment by the First Line Manager, the Second Line Manager and the People Consultant based on him being a person of colour throughout the PEP procedure which culminated in his dismissal and that the Chair of the appeal hearing continued the pattern of unequal treatment when he upheld the decision to dismiss the Complainant. I find however that the assertions made by him were speculative, they were not supported by documentary evidence and they lacked credibility.

The Complainant accepted that the Respondent had a grievance procedure and an anti-harassment policy and that he had access to them but that he did not search or look them up or seek to invoke them. His evidence was that he never made any allegation of discrimination by the Second Line Manager or anyone else in the Respondent’s employment until after the decision to dismiss him was communicated to him. I agree with the submission of the Respondent that it is noteworthy that the Complainant only made an allegation of discrimination after his employment ended and I find that the Complainant’s allegations of unequal treatment are at odds with the documentation submitted to the WRC by the Complainant and the Respondent which I find evidences the supports given to the Complainant throughout his employment with the Respondent.

In accordance with case law cited above to succeed in a complaint of discrimination the Complainant must establish that he was dismissed because he comes within one of the discriminatory grounds, namely the race ground, that he was subjected to specific treatment and that the treatment was less favourable than someone not covered by the discriminatory ground. Taking into consideration the case law referred to above and having regard to the Complainant’s evidence presented at the hearing I find that he has not demonstrated sufficient facts and there was no relevant evidence presented by him from which it may be inferred on the balance of probabilities that the Respondent discriminated against him on the grounds of race, and in particular because he was a person of colour.  

As highlighted in the Valpeters decision:

“the Complainant must first establish facts from which discrimination may be inferred” and such facts must “be of sufficient significance to raise a presumption of discrimination.”

Crucially, the decision also highlights that these “must be established as facts on credible evidence. Mere speculations or assertions, unsupported by evidence, cannot be elevated to factual basis upon which inference of discrimination can be drawn.”

Given that it was the Complainant’s case that he identified as a person of colour and that I have found that he only made assertions that he was discriminated against because of he was a person of colour and that these assertions were speculative and unsupported by credible evidence, I cannot find that he has established a prima facie case of discrimination.

As I have found that the Complainant has failed to discharge the burden of proof which requires him to establish the primary facts that can be relied upon to establish a complaint of discrimination I find that his complaint is not well founded.