Complainant

Respondent

Parties

Necati Hakan  Erdogan

Central Bank of Ireland

Complainant

Respondent

Anonymised Parties

Representatives

James Callaghan, Financial Services Union

 Brian Gallagher

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-00064266-002

24/06/2024

The Complainant commenced employment with the Respondent on 06/01/2020 as a software developer.  He reported to Ms A his line manager.  He was paid €6,500 gross per month.  The Complainant submitted a complaint of discrimination on the grounds of race to the WRC on 26/06/2024.  The Complainant is still an employee of the Respondent.  The Respondent rejects the Complainant’s complaint under the Employment Equality Act and submits that they are committed to upholding the dignity at work of all its employees.  The Respondent also submits that they took all steps under its agreed policies and procedures to investigate the Complainant’s grievances and it was found that there was no victimization of the Complainant.

The Complainant gave evidence on affirmation.  He had provided the hearing with a comprehensive submission which outlined a chronology of events and copies of emails and letters.

The Complainant gave evidence that during his probationary period (06/01/2020 – 06/07/2020)  he began to feel that there was issues with his line manager, Ms A.  He was so concerned that he raised a grievance with Mr P. J. Henebery, IT Delivery Manager who was Ms A’s line manager.  The Complainant’s concerns were that he was subjected to excessive criticism.  Mr Henebery met the Complainant and assured him that he would speak with Ms A.  Mr Henebery also assured the Complainant that he would have no difficulty in successfully completing his probation. The Complainant gave evidence of some of the exchanges made by Ms A at their stand-up meetings.  The Complainant also submitted that during the year 2012 Ms A sent emails to team members and noted some of her comments about the Complainant’s dealing with aspects of his work.  The Complainant believes that this was an unreasonable approach and as Mr Henebery was aware of the situation, he did not raise these matters with him.

While there was some improvement in Ms A’s approach this deteriorated around September 2022 after a new member joined the team and was trained by the Complainant.  After this training was completed Ms A began to raise issues with the Complainant’s performance.  It was the Complainant’s evidence that this left him feeling vulnerable and replaceable.  The Complainant opened a number of email examples sent by Ms A.  This resulted in the Complainant being told that he would be subjected to additional monitoring and the results of this would be included in his yearly PMDP review.  The Complainant felt that this was inappropriate and could potentially affect his career with the Respondent.

As some of these issues were ongoing the Complainant escalated his concerns to Mr Henebery who organised a meeting with the Complainant.  Following this Ms A sent some emails to apologise and noted that the Complainant was a senior team member and thanked him.

The Complainant gave evidence that following this he felt that Ms A did not address the issue of excessive monitoring or dealing with him in a disrespectful manner.  He drafted an email which he intended to send to Ms A and sought Mr Henebery’s advice.  Mr Henebery replied to the Complainant that he was disappointed with the Complainant’s approach and that these issues were still active despite the informal approach which led to an improvement.

The Complainant outlined that an email sent by Ms A to team members on 03/03/2023 was particularly concerning as she praised one team member specifically for her work on a particular project.  In response to questions from the Adjudication Officer the Complainant explained that this was a form of discrimination and Ms A and the team members were aware that he needed training in relation to the aspect of the project for which his colleague received praise.  The Complainant explained that all team members were aware of this, and he believes that Ms A deliberately worded her email so that the Complainant would be embarrassed and this constitutes indirect bullying.

The Complainant sent an email to Mr Henebery which outlined five areas of concern, including the email noted above.  Mr Henebery replied and asked the complaint to complete a chart/table which would capture any incidents in terms of what should have happened and what actually happened.  This was to allow him to understand the overall nature of the issues highlighted.  The Complainant gave evidence that this marked a change in approach by Mr Henebery.  The Complainant stated that he felt that Mr Henebery previously believed him but he now adopted an approach which seemed to favour Ms A.

The Complainant met with Mr Henebery, and he told the Complainant that he did not see anything wrong or unusual about Ms A’s behaviour.  Mr Henebery also told the Complainant that he had shared the concerns with two other managers, and they also saw nothing unusual about Ms A’s behaviour.

The Complainant submitted a formal grievance to HR on 10/03/2023. 

The Complainant went on a period of sick leave at the end of March 2023 and he was reviewed by the Respondent’s Occupational Health Physician.  He was on sick leave for 7 weeks.  After his return to work his grievance was still not progressed.  A number of mediation meetings took place and the Complainant gave evidence that he was concerned that Mr Henebery was acting as the decision maker in relation to his grievance. Mr Henebery did not ask Ms A about the issues raised by the Complainant.  The Complainant also stated that Mr Henebery denied that he accepted the Complainant’s version in relation to previous issues.  As a result of this the Complainant submitted a grievance in relation to Mr Henebery on 07/07/2023.  The investigation meeting in relation to this grievance took place on 20/10/2023.  The Complainant gave evidence that the managers who held this meeting stated that the behaviours complained of did not constitute bullying.  The investigation team issued its decision on 16/12/2023 and found that the Complainant’s dignity was not damaged in any way in the workplace.  The Complainant stated that he found this report flawed as he was not given an opportunity to cross-examine, or they did not revert to him in relation to the statements made by Mr Henebery.  The Complainant also noted that Ms A was not questioned as part of this investigation.

The Complainant appealed the outcome of this investigation.  An appeal hearing was held on 06/02/2024.  At this meeting the Complainant stated that he wished to include a complaint of discrimination to his case. He asked if he should lodge a grievance or add it to the appeal process.  He was informed by the appeal person, Ms B that she was only authorised to hear his appeal in relation to the outcome of the investigation and she was not going to answer his question.

The Complainant gave evidence that he lodged a further grievance on 12/02/2024 and this was in relation to the statements contained in Mr Henebery’s notes at the investigation meeting.   The Complainant received a reply from Ms C  (HR) to state that he did not raise any allegation of discrimination during the investigation process and no evidence of discrimination was found by the investigation team.  He was advised by Ms C that he had an opportunity to raise this at the appeal hearing.

The outcome of the appeal process was issued to the Complainant on 29/02/2024 and the decision of the investigation team was upheld.  The appeal letter also noted that he had made a reference to discrimination at the appeal hearing but this was not raised during the investigation and no evidence of discrimination was found by the investigation team.

The Complainant was asked by the Adjudication Officer to outline the basis of his alleged discrimination.  The Complainant’s evidence was:

(a)     that he was asked to report and take instruction from a team member of equal grade, and this was an “illogical and unreasonable” decision, and he disagrees with the Respondent’s position that this does not affect his dignity.  The Complainant believes that he is the only employee to whom such an arrangement applies.

(b)    The Respondent did not properly investigate his complaint against Ms A.  She was never questioned as part of the investigation.

(c)     Once he mentioned that he had legal rights the Respondent’s approach changed and the Respondent believes that Ms A did not affect any of his rights as a result of her behaviour.

(d)    The Respondent delayed investigating his complaints.  The first grievance took 7 months and the second took 6 months. The second grievance was only followed up when he had a major project completed as he was a critical team member.  The Respondent showed a lack of duty of care to him and that is evident in the manner in which his complaints were processed from the beginning.

(e)    The investigation process was flawed, and the Complainant was denied his rights and the Respondent did not leave any room for him to include his discrimination complaint in that process.

(f)      The Respondent argues that because he did not mention the word “discrimination” in his initial complaints they processed his complaint unfairly and used unfair procedures which he believes are also discriminatory.

The Complainant position is the investigation team, Ms A, Ms B and Ms C, are all joined in the act of discrimination by reason of race.

Cross examination of Complainant:

The Complainant was cross examined by Mr Brian Gallagher on behalf of the Respondent.  The Complainant was asked when Ms A ceased to be his line manager.  The Complainant thought that it was before October or November 2023.  It was put to the Complainant that he had no reason to interact with her after September 2023 and he agreed.  It was put to the Complainant that he submitted his complaint in relation to racial discrimination to the WRC on the 24/06/2024 and the relevant period for the purposes of the Employment Equality Act is from that date back to 26/12/2023.  The Complainant stated that his complaint was not just about Ms A.  When he got the investigation report on 15/12/2023 this was the first time he read the statement by Mr Henebery.  The Complainant also stated that the Respondent did not process his third grievance.

It was put to the Complainant that in his written submission he stated that a colleague allocated work to him and that no other employee in the bank has this arrangement.  He confirmed that was correct.  The Complainant was asked what evidence he had to support this statement.  The Complainant stated that he had no evidence, but it was against logic to have such an arrangement.

The Complainant was asked if he would be surprised if the Respondent had an agreement with the recognised Trade Unions that there could be same level reporting apart from the annual performance reviews.  The Complainant stated that he would not be surprised.  It was put to the Complainant that the Respondent had numerous examples of where this arrangement was happening.

It was put to the Complainant that he also stated that the delay in processing his grievance was evidence of racial discrimination and he confirmed that was his view.  It was put to the Complainant that his initial grievance was dealt with through mediation and he confirmed that it was.  It was put to the Complainant that he submitted his second grievance after the mediation process and he confirmed that he did as he felt that the matter was not resolved through mediation.

It was put to the Complainant that he was on sick leave from 30th March for a period of 7 weeks. During that time he was also reviewed by the Respondent’s Occupational Health Physician and he was deemed unfit to work and unfit to engage.  He confirmed that this was correct.   It was put to the Complainant that this 7-week period was the reason for the delay in processing his grievance and he stated that he accepted that.

The Complainant was asked to clarify his allegation of racial discrimination.  He was asked if he accepted that at no stage in 2020 until he received the investigation report he never raised an issue of racial discrimination and he confirmed that was correct.

It was put to the Complainant that the first time he raised an issue of racial discrimination was at the appeal hearing on 06/02/2024 and he confirmed that was correct.  The Complainant was asked if he was advised by Ms B at the appeal hearing that the appeal could only deal with matters of process and procedure in relation to the investigation and it was not intended to reinvestigate or deal with new issues and he confirmed that he was told that.

The Complainant was asked if he stated during  the appeal hearing that all he wanted was compensation.  The Complainant stated that he did not think he did.  It was then put to the Complainant that in the letter dated 29/02/2024 which communicated the outcome of the appeal hearing it was noted: “I note during the appeal hearing you stated you would be open to other resolutions such as compensation”.  The Complainant agreed that this was correct.

It was put to the Complainant that he was advised that the complaint of racial discrimination would not be considered as part of the investigation appeal and despite this he never actually submitted a separate complaint.  The Complainant stated that he did submit a complaint on 12/02/2024.

It was put to the Complainant that Mr Henebery was having difficulty understanding the general nature of his complaint and understanding  the issues and he asked the Complainant to fill out a form to assist him.  The Complainant stated that he filed out the form.

The Complainant was asked if accepted that he had numerous meetings in relation to his grievances and these gave him advice both from Mr Henebery and HR and he confirmed that was correct.

The Complainant was asked what way the issues raised were linked to racial discrimination.  The Complainant stated that he had experienced “normal bullying and I was unfairly treated”.

It was put to the Complainant that it could be just that he and Ms A did not get on and he stated that was not the case.  The Complainant was asked if he was linking his rights to racial discrimination and he stated that was not the case, but one had to look at all the other problems he was having.

The Complainant was asked if he had a number of performance reviews since he commenced employment and he confirmed that he had.  He was asked if he ever received any negative reviews and he stated that he had not, but Ms A had expressed negative comments about him.

The Complainant was asked if he was ever the recipient of a Performance Improvement Plan (PIP) and stated that he was not but that he is currently on one, but he is now in a different team.

It was put to the Complainant that he never had any detriment while he reported to Ms A and he had not but he had lots of discussions about her.  It was put to the Complainant if he agreed that all his issues in 2022 were resolved and he confirmed that they were.

The Complainant was asked to outline what detriment he had suffered.  He stated that the Respondent had made decisions by finding that the actions of Ms A towards him were ok.

The Complainant was asked if he also submitted a formal complaint against Mr Henebery and he confirmed that he had.

Closing submission:

In a closing submission the Complainant stated that he believes he was discriminated against by the Respondent.  This had been mentioned.  The last date of this discrimination was 29/02/2024 which was the date he received the outcome of the appeal process.

The Complainant submitted that it was unreasonable to accept tasks from a colleague in the absence of any contractual obligations to do so.  This arrangement can affect a person and can be a form of discrimination.

The Complainant believes that he was discriminated against by reason of his race at various stages by the Respondent and he has outlined these in detail in his written submission.

The Complainant confirmed to the Adjudication Officer that he was satisfied that he was able to provide the hearing with all the details and information relevant to his complaint. 

The Respondent outlined in its submission that the Complainant commenced employment on 06/01/2020 and in February 2020 Ms A was assigned as his line manager. The Complainant’s probationary period was signed off by Ms A in July 2020.  The Complainant raised some concerns about his line manager, Ms A, in May 2020.  It is the Respondent’s position that at no point in the informal or formal processes in relation to the Complainant’s allegations of bullying against Ms A did he raise any concerns about discrimination on the grounds of race.  The first occasion when the Complainant mentioned this was on 06/02/2024 during an appeal meeting but he did not specify what the grounds were.

The Respondent is committed to upholding the dignity at work of all employees and it has a Dignity at Work Charter.  The Respondent’s Dignity at Work policy is comprehensive and is designed to address bullying, harassment and sexual harassment.  The policy is communicated to all employees through the intranet.  The Respondent also has eight trained contact officers across different areas and these officers are available for staff to raise any queries in relation to the policy or its implementation.

In addition to this policy the Respondent also has a Code of Ethics which is issued to all new employees and all staff are reminded on an annual basis of their obligations under this code.  A specific part of that code deals with treating others with dignity and respect.  The Respondent also has a working group on Diversity which promotes diversity within the bank.

The Respondent set out a number of legal submissions in relation to the application of the Employment Equality Act and noted that case law  sets out the evidential burden of proof on the Complainant to establish a prima facie case of discrimination.  The Respondent noted that in the case of Rotunda Hospital v Gleeson [DDE003/2000] the Labour Court noted that prima facie evidence is “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 Respondent also noted the case of Cork City Council v McCarthy EDA21/2008 and Melbury Developments Ltd v Valpeters [2010] ELR 64.

It is the Respondent’s position that the Complainant makes vague and unsubstantiated claims that simply because his race is different to his line manager, all actions, despite being investigated by the Respondent, must be considered discriminatory.  The Respondent submits that the Complainant has failed to provide any evidence to support his claim of discrimination.

The Respondent provided the hearing with a detailed chronology of events in relation to the Complainant’s complaint.  The issues raised by the Complainant were dealt with through an informal process in May 2020 and following the assistance of Mr Henebery the matter was resolved.  In September 2022 the Complainant’s line manager raised some concerns about his work output and she discussed these with him at their 1:1 meetings.   The Complainant was also advised by his line manager that she would be monitoring and tracking his progress on the issues identified and that she may require more frequent 1:1 meetings and that she most likely would refer to these issues in his annual PMDP. 

The Complainant again complained to Mr Henebery about Ms A’s management of him.  The Complainant also raised a concern about a peer level reporting.  The Complainant also raised a concern that his health and dignity at work were being affected.  It is the Respondent’s position that peer-to-peer reporting is a common practice and it is particularly common in the IT Division as there is a combination of employees and contractors so the practice of same level reporting is in place.

The Respondent notes that Mr Henebery met with the Complainant about his issues and continued to provide 1:1 support and coaching on a weekly basis  While this resulted in some changes to Ms A’s approach she often had to deal with the Complainant in relation to work delivery issues.  Mr Henebery advised HR in November 2023 that things appeared to be improving on the team.    However, Mr Henebery had to approach HR again when matters appeared to resurface. The Complainant submitted a formal grievance on 10/03/2023.  The Complainant went on a period of sick leave and he was deemed unfit to work or engage by the Respondent’s Occupational Health Physician.

In line with the common practice in the Division the Complainant’s reporting line changed due to the nature of the work within the project.  The Complainant would now be reporting to a different manager and would no longer report to Ms A.  The Respondent believes that this demonstrates that they made some accommodations to support the Complainant.

The Complainant returned to work on 17/05/2023 and Ms Mulligan, HR Advisory Team, spoke with the Complainant and outlined the various approaches open to address his dignity at work grievance. Ms Mulligan suggested a joint meeting with the Complainant and Ms A at which she and Mr Henebery would also attend.

The Complainant submitted a victimisation complaint on 12/06/2023 and he was advised that the Respondent wished to address his concerns in a local and informal manner if this was possible and in line with the provisions of the Respondent’s Dignity at Work policy.

An informal meeting took place with the Complainant and Ms A on 29/06/2023 and despite the confrontational approach by both parties they reached an agreement to work professionally and in circumstances where the Complainant’s reporting line had already changed.

The following week the Complainant submitted a further grievance.  This seemed to be in relation to Mr Henebery’s management of the Complainant’s concerns.  An informal meeting took place on 18/07/2024 with Ms Mulligan and a colleague.  A number of issues were discussed and the Complainant was assured that the Respondent was committed to resolving issues of this nature.  However, the Complainant felt that management were against him and the informal approaches were designed to avoid dealing with his case.

The matter was then escalated to formal procedures.  Ms McGinty, Employee Relations Manager, wrote to the Complainant and invited him to outline his grievance in writing and to specify where he believed he was victimised.  In his reply the Complainant outlined his grievance which was solely directed at Mr Henebery.  The Respondent established an investigation team under the Dignity at Work policy and they would focus on the actions of Mr Henebery as outlined in the Complainant’s written outline of his grievance.  The Respondent notes that Ms A was not mentioned in the grievance letter.

The investigation team met with the Complainant on 23/10/2023 and with Mr Henebery on 13/11/2023.  The detailed report of the investigation team was issued to the Complainant on 15/12/2023. The Complainant submitted his appeal of this report on 21/12/2023.  The appeal hearing took place on 06/02/2024 and the outcome was issued to the Complainant on 29/02/2024.

Meanwhile, after the appeal hearing the Complainant sent a further document on 12/02/2024 in which he outlined issues which he regarded as workplace discrimination and these related to Ms A’s correspondence of 23/09/2023 and 03/03/2023 and Mr Henebery’s record of his meeting with the investigation team on 13/11/2023.  The Complainant was advised that he issues he raised in this letter were considered as part of the formal investigation and at his appeal hearing and therefore there was nothing in this letter which could be viewed as constituting a new grievance.

Evidence: Ms Kate Mulligan:

Ms Kate Mulligan gave evidence on behalf of the Respondent.  She outlined that she is part of the HR Advisory Team and she is a HR Advisory Specialist.  This role involves assisting line managers when dealing with issues.  Ms Mulligan gave evidence that her interaction with the Complainant began when there was an informal process taking place and she also interacted with him after his period of sick leave.

Ms Mulligan gave evidence that she was involved in a facilitated discussion with the Complainant and Ms A.  Mr Henebery also sat in on this meeting but merely as an observer.  The nature of this discussion was to try and resolve issues at local level. 

Ms Mulligan was asked about the outcome and she stated that the Complainant’s line manager had changed at that point.  She confirmed that the meeting took place on 29/06/2023.  Ms Mulligan also confirmed that after that meeting the Complainant sent in a second grievance which was a complaint about Mr Henebery.  Ms Mulligan confirmed that there was no mention of Ms A in that grievance.

Ms Mulligan gave evidence that she met with the Complainant on 18/07/2023 to clarify why he thought the issues were not dealt with during the informal process.  The Complainant wanted Ms A to be dealt with.

Ms Mulligan confirmed that there was no mention of race by the Complainant and she had no recollection of him ever mentioning racial discrimination.

Cross examination: Ms Kate Mulligan:

The Complainant stated that he had no questions to put to Ms Mulligan by way of cross examination.

Evidence: Mr P.J. Henebery:

Mr Henebery gave evidence in relation to his role with the Respondent.  He is the I.T. Delivery Manager and he as just over six direct reports.  The project the Complainant was working on did have a project manager and the Complainant’s Ms A reported to this person.

Mr Henebery was asked about the Complainant’s assertion that he took sides when dealing with this issue.  Mr Henebery stated that the project itself was very intense and long.  It commenced in 2020 and ended in 2023.  His role was to deliver this project.  Mr Henebery gave evidence that he needed to resolve issued, such as interpersonal issues and he had 1:1 meetings with the Complainant and Ms A.  He tried to resolve personal issues on the team.

Mr Henebery stated that the Complainant did not have concrete examples of the kind of issues he was referring to do.  It was not clear to him what the precise nature of the difficulty was.  He had discussions with the Complainant and he also spoke to Ms A in relation to her communication style.  Mr Henebery stated that his role was to try and get over issues that affected the team and thus affect the project.

Mr Henebery was asked to clarify the same level reporting.  He stated that within the IT department it is common practice and there are lots of examples of where this occurs.  It still remains a common practice.  Some of those involved in same level reporting were contractors who had special technical skills.

Mr Henebery was asked about the chart he provided to the Complainant.  He stated that the reason he provided this was to assist him to figure out what happened as he was unsure what the actual issues were.  He asked the Complainant to fill this in and it was merely a mechanism to help him understand the nature of the issues.

Mr Henebery was asked his response to the Complainant about the email sent by Ms A at the end of March 2023.  He stated that this was an initial email to acknowledge work done and his email was to try and understand why the praise of one person could be interpreted as an omission of praise to someone else.

Mr Henebery was asked if he had any reason to believe that any of the issues raised by the Complainant were related to his race.  Mr Henebery stated that he was never appraised of any issue in relation to race by the Complainant.

Cross examination: Mr P.J. Henebery:

Mr Henebery was cross examined by the Complainant. Mr Henebery was asked if the chart he sent to the Complainant was sent before the Complainant mentioned his rights.  Mr Henebery stated that it was not and that he had employed dialogue in order to maintain a level of continuity.  Mr Henebery confirmed that the chart was a one off and not issued to anyone else.

It was put to Mr Henebery that there was a lot of trying to forget about what was going on.  Mr Henebery stated that there was lot of narrative in relation to the issues and he was always trying to understand the precise nature of the issues raised.

It was put to Mr Henebery that when the Complainant stated that he had rights Mr Henebery changed his approach.  Mr Henebery stated that when the Complainant mentioned his rights this had no influence on his approach.

Mr Henebery was asked if he could confirm that the Complainant’s draft letter to Ms A was sent to him and he confirmed that it was.

Mr Henebery was asked why he thought things had improved. He stated that there were periods when things were going well.  He also confirmed that he spoke with the Complainant when issues arose and overall it was a kind of an “on/off” situation.

It was put to Mr Henebery that Ms A raised issued about the Complainant’s performance and the manner in which this was done “was more than normal”.  Mr Henebery stated that the issues raised about the Complainant’s performance were standard line manager issues.  It was Ms A’s responsibility to manage the Complainant’s performance.

It was put to Mr Henebery that when Ms A stated that the issues will affect the Complainant’s annual performance review that this was more than managing performance issues.  Mr Henebery stated that Ms A has a responsibility to manage performance and the Complainant has a responsibility to deal with issues highlighted.  Mr Henebery stated that it was not reasonable to wave PMDP but the overall approach is a matter of style.  Mr Henebery stated that while it was Ms A responsibility as a line manager to deal with issues he would agree that it could have been handled differently.

It was put to Mr Henebery that after the Complainant spoke with him Ms A stopped checking the Complainant’s work.  Mr Henebery disagreed and stated that she could not as it was part of her role.

Mr Henebery was asked when he did not understand the nature of the issues between the Complainant and Ms A.  Mr Henebery stated that it was clear to him that there were interpersonal issues and he tried to deal with these as best he could.  The precise nature of some of these issues were difficult to understand.

Closing submission:

Mr Brian Gallagher made a closing submission on behalf of the Respondent.  Mr Gallagher noted that the case is a very specific complaint of racial discrimination.  The Respondent has always sought to deal with the Complainant’s issues in a fair and transparent manner and in line with the procedures and policies which are agreed with all the recognised Trade Unions.  The Complainant did not suffer any discrimination on the grounds of race or victimisation during his employment.  The Complainant’s allegations of bullying were appropriately addressed by local management, and independent investigation and an appeal process.  At no stage in any of these processes did the Complainant raise specific instances of alleged discrimination or victimisation.  The Respondent is satisfied that they applied the principles of fair procedures and natural justice at times and the chronology of the Respondent’s responses to the Complainant’s issues clearly confirm this.

The Respondent also submits that the time limits outlined in the Employment Equality Act restrict the Complainant’s timeline from 24/06/2024 to 26/12/2023.  The Respondent submits that they have no case to answer in relation to this complaint and in addition to this the clear evidence is that the Complainant has failed to make a prima facie case as required by the Employment Equality Act.

The Complainant submitted a complaint to the Workplace Relations Commission on 24/06/2024 that he was discriminated against by the Respondent on the basis of his race. The Respondent submits that the complaint is not well founded as no discrimination took place and the Complainant did not provide sufficient details to ground a complaint under the Act.

Section 6 of the Employment Equality Act, 1998, states:

“6.— (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 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are—

(a) that one is a woman and the other is a man (in this Act referred to as “the gender ground”),

(b) that they are of different civil status (in this Act referred to as “the civil status ground”),

(c) that one has family status and the other does not (in this Act referred to as “the family status ground”),

(d) that they are of different sexual orientation (in this Act referred to as “the sexual orientation ground”),

(e) that one has a different religious belief from the other, or that one has a religious belief and the other has not (in this Act referred to as “the religion ground”),

(f) that they are of different ages, but subject to subsection (3) (in this Act referred to as “the age ground”),

(g) that one is a person with a disability and the other either is not or is a person with a different disability (in this Act referred to as “the disability ground”),

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

(i) that one is a member of the Traveller community and the other is not (in this Act referred to as “the Traveller community ground”)”.

This complaint is made pursuant to the Employment Equality Acts on the basis that the Complainant was discriminated by the Respondent because of the difficulties she experienced. 

The Burden of Proof

The Equality Act 2004 inserts a new section, 85A, into the Employment Equality Acts 1998 – 2015.

“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 s.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.  Referred to as “prima facie” evidence, in the context of this adjudication hearing, the responsibility was on the Complainant to show that, based on the primary facts, he has been discriminated against because of his race as outlined in the Act.

The Complainant provided the hearing with a substantial submission which provided a narrative of events since his employment commenced on 06/02/2020 up to February 2024.  As his complaint was submitted to the WRC on 24/06/2024 the cognisable period is from 24/12/2023 to 24/06/2024.

The explanation provided by the Labour Court in its decision on Arturs Valpeters v Melbury Developments [2010] 21, ELR 64, which addresses the onerous nature of the burden of proof is also helpful:

“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.”

In deciding whether the Complainant has discharged the burden of proof as set out in section 85A of the Act above, I must consider the totality of his evidence given at the hearing. In the first instance, I note that while he attempted link the alleged interaction and behaviour to the ground of race as specified in the Act, he failed to establish facts from which it may be presumed that the principle of equal treatment has not been applied to him. 

Bolger, Bruton, Kimber; Employment Equality Law 2nd Ed. 2022 at para 2-207 commenting on Southern Health Board v Mitchell (2001) E.L.R. 201 noted:

“This test requires that facts relied upon by a Complainant must be proved by them to the satisfaction of the Tribunal or Court at the level of balance of probabilities and if proven, must be of sufficient significance as to raise an inference of discrimination. In the case before it, the Labour Court found, on the facts of the case, that the Complainant could not demonstrate superior qualifications and experience than the successful appointee and that she therefore failed to discharge the burden of proof that rested on her”.

In Cork City Council v McCarthy (2008) EDA0821 the Labour Court also stated:

“The type or range of facts which may be relied upon by a Complainant can vary significantly from case to case.  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 be appropriately drawn to explain a particular fact or a set of facts which are proved in evidence”.

The Complainant has raised issues related to racial discrimination and victimization, which have been addressed through established processes by the Respondent. After undergoing these procedures, no evidence of racial discrimination or victimization was found. Now, the Complainant is seeking adjudication, on whether the outcome of those processes also contributed to his initial complaint of racial discrimination.

There are a number of issues that emerge from the Complainant’s approach which need to be outlined:

Finality of Process: The Complainant must accept that repeatedly restating the same complaints is not a valid means to achieve a more favourable outcome. Once a complaint has gone through the appropriate processes, it cannot be endlessly revisited simply because the Complainant disagrees with the result.

Implicit Agreement: By engaging in the formal processes provided (such as, informal approaches,  mediation, investigation, or hearings), the Complainant implicitly agrees to abide by the outcome, unless there is a substantial reason to challenge it, such as a significant procedural flaw or new evidence that could undermine the findings or any agreed outcomes.

Appeal Mechanism: The appeal process exists as a safeguard to ensure fairness and integrity, allowing the Complainant to challenge the outcome if there is a legitimate basis to do so. This mechanism ensures that the decision-making process is thorough and just.

Duty of Acceptance: Unless there is a demonstrable issue that undermines the validity of the process or the outcome, the Complainant has a responsibility to accept the result.

This reasoning is likely intended to prevent repeated or frivolous appeals and to underscore the importance of respecting the established resolution processes.

In conclusion I find that as the Complainant has failed to establish facts, from which it may be presumed that the principle of equal treatment has not been applied to him. The Complainant has consequently failed establish a prima facie case of discrimination for the purposes of this Act. I find that this complaint is not well founded.

I find that this complaint is not well founded, and the Respondent, The Central Bank of Ireland, did not discriminate against the Complainant, Mr Necati Hakan Erdogan.

Race discrimination.  Cognisable period.