Complainant

Respondent

Anonymised Parties

Marketing Manager       

Weight Management Service

Representatives

  Self- represented

Mr. Cillian McGovern, Bl., instructed  by Crushell & Co Solicitors

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-00061402-001

06/02/2024

The complainant submits that he was discriminated against on the grounds of race contrary to the provisions of the Employment Equality Acts,1998-2015, (‘the Act’), when the respondent treated him less favorably than a person of a different ethnicity.

He further contends that he was harassed and victimized on grounds of race.

The most recent incident of discrimination occurred on the 31/1/2024.

The complainant is Nigerian born.

He commenced employment as a Marketing Manager on 9/5/2023. The role of ICT Project Manager was later added to his list of responsibilities.

The respondent terminated his employment on the 2/2/2024.

His gross weekly wage was €865.

He submitted his complaint to the WRC on 6/2/2024.

The complainant submits that he was discriminated against on the grounds of race contrary to the provisions of the Employment Equality Acts,1998-2015, when he was treated less favourably than employees of a different ethnicity.

The complainant gave evidence under affirmation.

Treatment of absences owing to illness.

 The complainant cited less favourable treatment in the respondent’s attitude towards how his periods of illness were treated differently to colleagues.

He cited a fellow manager, non- Nigerian, as his comparator.

If he needed to see a GP, he had to prove it. When he had to have 24-hour blood pressure monitoring, he took a picture to send to the Director of this appointment in a Dublin hospital on 7/2/2024. He was not advised to stay at home for the remainder of the day. He was asked to provide a sick certificate for two days which he took off, one day was for medical appointments, the second, he worked from home. He was allowed to work remotely. He was hassled about it. He never saw anyone else treated like that. He hadn’t exceeded his sick leave entitlements. This is contrary to his contract which requires the production of a certificate on or after the second day of absence.

There was a marked difference in the concern expressed towards him relative to his named comparator, a fellow manager, and other colleagues.  He advised that he had not objected to this at the time. This was the first time he was raising the matter.

Measurement of KPIs relative to Irish Colleagues.

He was the only employee who had to submit to KP1s

His comparator was never measured against KPIs. The Finance Manager did not have KPIs applied to his performance.

Failure to oblige the Social Media Manager to report to him

While the director told him in September /October 2023 that the role of Social Media Manager, the role held by his comparator, came within the ambit of the Marketing Manager’s role, he also stated that she was not obliged to report to the complainant. He was told to communicate with her via a third party. Because of his race she refused to report directly to him. Her function as Social Media Manager was an intrinsic element of marketing and of his role as Marketing Manager. Her failure to engage with him on content postings affected him in his role as Marketing Manager.

The Director’s failure to have her report to the complainant is indicative of racial discrimination.

Difference in treatment regarding payment of motorway tolls

The Director instructed the Finance Manager to pay the complainant’s motorway tolls. But after the first three months, the Finance Manager delayed reimbursing him for the cost of tolls. Sometimes he had to wait two weeks for payment.

The complainant was unable to say if the respondent paid motorway tolls for other employees.

Instance of Harassment on grounds of Race

Racial Profiling.

A customer came to one of the respondent’s clinics. The complainant was the only person there at the time. He could not recall the date. The customer asked the complainant if he was the security guard. He assumed this was the case because of the complainant’s ethnicity. The complainant told the Director about this incident. The Director didn’t respond.

He never heard of any comparable treatment toward his comparator.

Harassment on grounds of Race.

The Finance Manager constantly telephoned him seeking information about marketing issues related to Meta and Google.

He micromanaged the complainant. He yelled at the complainant. The complainant told the Director who said ‘well that’s D for you”

He believes that the Finance Manager’s questions to him were needless and constituted harassment of him.

The Finance Manager undermined the complainant by bringing in an external person. He gave this non- employee access to admin systems, to the online and digital marketing tools and systems used by the complainant. He did this because of the complainant’s ethnicity.

Victimisation.

The act of victimisation was his dismissal on 2/2/2024.

The protected act was advising the respondent that he was unfairly treated and that he intended to seek advice from the WRC.

Cross examination of the complainant.

To the respondent’s question enquiring if the criticism of him providing “shitty leads “and the fact that he did not have control over a female manager constituted the height of his complaint, the complainant responded by stating that the respondent had offended his right to dignity at work.

He was treated less favourably than social media and sales staff.

When asked about his complaint of victimisation, and what exact complaint of discrimination had he presented to the respondent, he states that he advised the respondent that he was treated differently to his comparator.

 Concerning the alleged victimisation of the complainant as manifest in his dismissal, the complainant confirmed that he had signed the probationary contract of eleven months duration which allowed for the termination of the contract at the employer’s discretion. But the complainant added that he had been told that he had passed his probation at the end of three months and that the respondent had submitted an email to that effect to him. To the respondent’s statement that “he had passed his initial 3-month probationary period”, the complainant stated that he believed that he had passed his probation. He does not accept that he was still on probation, or that he had to pass a final probation at the end of a period of 11 months.

It was an affront to his dignity.

He confirmed that the role of the marketer is to raise the profile and develop leads.

He accepted that he had increased expenditure on Meta and Google, like employees before him.

In the context of poor sales in January 2024, he accepted that there were more busy times for the business, post -Christmas being one.

Concerning his belief that the employer’s expectations of him were influenced by racist attitudes, he stated that his rate from an initial expression of interest to a booked and committed client, stood at 20%.

He accepted that his relationship with the Financial Manager was generally conducted via telephone.

When asked how the calls from the Finance Manager could be seen to amount to harassment and why the Finance Manager was not entitled to be involved in how the complainant was spending company money and to understand where the money was going, the complainant stated the Finance Manager was calling him to explain what an algorithm meant and to ask the complainant what the actual spend was on a particular promotion. The complainant did not accept that the persistent questions, if that is what they were, was because the complainant was using over technical terms.

The complainant stated that the budgets were transparent. The Finance Manager micromanaged him.

He accepted that he doubled the expenditure of his department while there.

Concerning the non-payment for dates during which he had sought unpaid holidays, the complainant confirmed that he had a do not contact me message up on his email on those dates, but he did send emails during those days to the Director and there would be emails waiting for him on his return to work.

There were constant delays in paying him his salary. He had to constantly send emails about non – payment of salary.

Difference in treatment regarding payment of motorway tolls

He advised that he did not know if other staff were paid toll and parking charges.

Treatment of absences owing to illness

Concerning his comparator’s absence due to illnesses, he accepted that there was one instance when her illness was potentially critical, but for other less serious absences, the care and concern extended to her was different than that afforded to him.

Criticism of the complainant.

He was belittled by being told that his leads were “shitty”.

He confirmed that head expected his comparator, to apologise him.

The complainant gave no response to the question as to how comparator’s alleged incompetence affected his role.

To the question as to why he was so keen to oversee the comparator’s work, he stated that if for example she did a poor email, it reflected on his work. Her employer did not pick up on of her faults. She objected to the complainant suggesting how particular projects should be done.

When asked if he had an issue about lack of control over his comparator, he said, not control, but accountability. She had no KPIs.

To the question as to whether the comparator was obliged to report to the complainant, he stated by not reporting to him she wasn’t doing her job. She refused to be accountable for her work.

He found it difficult to manage a professional relationship with her

He accepted that he was held to a high standard. He stated that if he generated poor leads constantly that he could be brought to book about same. The expression” shitty leads” should not have been uttered.

He accepts that his job as Marketing Manager was to generate leads and sales and to convert leads to commitments to buy into programme. He accepted that the company used the same process of securing customers for the past 20 years.

Instance of racial profiling.

 When asked how a reasonable employer would respond to such a situation, he said, “apologise”.

The complainant could not remember when this incident happened.

He got a new job in September 2024.

The complainant cites Ruffley v The Board of Management of St Anne’s School, (2017) IESC 33, which characterised bullying as “Repeated, inappropriate and undermining the dignity of the employee at work.”

This matches what happened to the complaint while employed with the respondent and was attributable to his race.

The complainant asks the Adjudicator to uphold his complaint.

The respondent denies that they discriminated, harassed or victimised the complainant on any of the grounds listed in the Act. He was dismissed eight months into an eleven-month probationary contract because he was unable to perform to the required standard.

Preliminary matter; the named comparator.

The named comparator is a contractor, not an employee, is an invalid comparator and therefore his complaint of discrimination cannot succeed.

Evidence of Director given under affirmation.

Allegations of difference in treatment concerning health matters.

Concerning the allegation of less favourable treatment regarding the production of certificates / explanations as to absences and as reported to be the case on the day the comparator asked to leave early because of health matters, the witness did not require a medical certificate as she was not an employee. Furthermore, she had told the witness that a scan which she had undergone showed a possibility of cancer.

Non-imposition of KPIs for the comparator.

 The comparator posted tweets every day. The witness also made demands on both the complainant and the comparator. He stated to both of then that he wanted to see more posts as to why the company was different to / better than equivalent services.

Difficulties between the complainant and the comparator.

The complainant took down Instagram posts uploaded by the comparator without first telling her. He should have told her first. It damaged the relationship between them.

Concerning any difficulties which arose between the complainant and the comparator regarding the quality of her work, the company did think of changing the social media manager but her health status at the time deterred the company. She is no longer with the company.

Evaluation of the complainant’s work

Criticism of the quality of complainant’s leads.

The evaluation of the complainant’s leads was entirely unconnected to his ethnicity. The complainant would not listen to any suggestions. His leads were junk, dead end leads and should have been seen as such by the complainant. The sales staff could make 20 calls to leads supplied by the complainant and only one of them might come to fruition. When the receptionist and the witness told him that the leads which he had supplied were poor leads, he told them, “Listen to me”. He blamed the failure rate of leads to conversion on the sales function though they were using a model in operation for the previous twenty years which had worked well.

Allegation of racial profiling.

The witness stated that he was sorry if the complainant viewed the question as to whether he was the security guard to be evidence of racial profiling. Two females normally work there but on that occasion he was alone.

Allegation of victimisation.

The respondent denies that the decision to notify the complainant on 24/1/24 of his decision to dismiss the complainant was an act of victimisation. The witness had notified him of his concerns about his performance on multiple occasions.

 The witness stated that the meeting of 24/1/2024 during which the complainant shouted was the final straw. The witness found it difficult to work with the complainant. The complainant was defaming the company and defaming the sales assistants. He would agree on a certain line at a meeting and then go off and do something entirely different.

Cross examination of witness.

The witness confirmed that the comparator travelled a lot for the company.

The witness stated that some customers expressed reservations at times about their product. Thousands of satisfied customers return each year, and their services are not cheap. So, it’s not their service which is responsible for the limited returns from the marketing manager.

Evidence of Finance Manager given under affirmation.

The witness confirmed that the complainant was the only employee who was paid motorway tolls and parking fees.

He denies the assertion that he micromanaged the complainant. He works in a different location to the complainant. He met the complainant maybe 6 times a year. Neither did he phone him constantly or over weekends.

The complainant frequently looked for payment in advance. This was difficult to manage.

 Legal Authorities.

The respondent cites The Southern Health Board v Dr. Teresa Mitchell, DEE 011, in support of their contention that the complainant has failed to meet the requirements of section 85 of the Act.

The respondent also relies on Graham Anthony and company Limited v Mary Margetts EDA038 where the labour Court 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 facts advanced by the complainant in the instant case fail to raise an inference of discrimination and his complaint must fail.

Preliminary issue.

The Comparator.

The respondent argues that the Social Media Manager is not a valid comparator as she is not an employee, but a contractor. Therefore, the complaint cannot proceed.

Section 28 of the Act defines comparators are

“28.—(1) For the purpose of this Part, “C” and “D” represent 2 persons who differ as follows:

(g) in relation to the ground of race, C and D differ as to race, colour, nationality or ethnic or national origins or any combination of those factors”.

Furthermore, Section 8(1)(6) of the Acts provides that:

“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 or to a class of persons of whom he or she is one-

(a)          The same terms of employment (other than remuneration and pension rights)

(b)          The same conditions of employment

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”

I find that the term person in both sections of the Act and the strictures in section 8 of the Act against discrimination encompass the named comparator. I find that the work which they were both doing, promoting the employer’s services and products were aimed at the one goal which was to attract more customers to the respondent’s service and grow the business.

I do not accept therefore, that the named comparator is not a valid comparator.

Complaint of discrimination.

 I am required to establish if the complainant was discriminated against, harassed and victimised on grounds of race contrary to the provisions of the Act.

Relevant Law:

Section 6(1) of the Employment Equality Acts provides that discrimination shall be taken to occur where

“a person is treated less favourably than another person is, has been or would be treated in a

comparable situation on any of the grounds specified in subsection (2) ...”

Section 6(2)(h) of the Acts defines the discriminatory ground of race as follows:

” h) that they are of different race, colour, nationality or ethnic or national origins (in this Act

referred to as “the ground of race”),

Burden of proof.

The first obligation which the complainant must meet in proving that discrimination has occurred is demonstrating compliance with section 85A of the Acts. It lays the onus of proof with the complainant to establish a prima face case of discriminatory treatment contrary to the Acts. Section 85A (1) of the Acts states that:

“In any proceedings where facts are established by or on behalf of a complainant from which it may

be presumed that discrimination has occurred in relation to him/her, it is for the respondent to

prove the contrary”.

In the case of Teresa Mitchell v Southern Health Board (Cork University Hospital) AEE/99/8, [2001]

12 E.L.R. 201, the Labour Court concluded that

“a complainant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination. It is only if 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 was no infringement of the principle of equal treatment”.

The complainant must discharge this evidential burden. If he does, the respondent must prove that he was not discriminated against on grounds of her race. If he does not, his case cannot succeed.

 In order to achieve compliance with section 85(A)- the first step- he must satisfy three elements of a test laid out in Minaguchi v Mr. Ray Byrne, T/A Wine port Lakeshore Restaurant DEC-E/2002/20.

The three requirements necessary to establish that a prima facie case exists are:

- That s/he is covered by the relevant discriminatory ground(s),

- That s/he has been subjected to specific treatments; and

- 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.”

Application of the above preconditions to the elements of the instant complaint.

The complainant has a protected status by virtue of his ethnicity as a Nigerian born person.

The specific treatment is the respondent’s treatment concerning:

 His sick leave absences or medical appointments:

The treatment concerning non -payment of motorway tolls and parking costs;

The imposition of KPI;

The failure to have a fellow manager report to him.

He claims that all the above are less favourable than the treatment afforded to persons of a different ethnicity.

The requirement to produce a certificate was put to him on 7/2/2024, when his absence would extend to two days, was in keeping with his contract, and most significantly occurred after he had submitted his complaint to the WRC on the 6 February. This instance of alleged less favourable treatment, occurring after the submission of his complaint is, therefore, inadmissible. 

The other instance of discrimination is the apparent lack of concern for his health relative to his colleague. The well of empathy on tap for one employee over another may be hurtful, and careless, but that does not mean that its scarcity is due to his race.

Failure to pay his tolls and parking costs.

The uncontested evidence was that the complainant was the only employee who was paid these benefits. This cannot be seen as less favourable treatment relative to another employee as he was the only beneficiary of this arrangement.

Criticism of the complainant’s work

Criticising him about his leads and calling them “shitty”, may be overripe but the complainant presented no evidence that poor leads, or below par work from another employee, was ignored or was not subject to such withering commentary. I accept that it may be difficult to uncover such examples, but in Melbury Developments Limited v Valpeters, EDA -17/2009, a case concerning alleged discrimination on grounds of race, the Labour Court addressed the probative burden contained in Section 85A of the Acts which a complainant must meet in trying to raise an inference of discrimination and stated:

“This requires that the complainant must first establish facts from which discrimination may be inferred. ….... Mere speculation or assertion, 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.

On the basis of the evidence and the law, I am unable to find that this criticism of the complainant’s work was because of his ethnicity or that below par work from persons of a different ethnicity escaped disfavour.

Imposition of KPIs.

The complainant states that no KPIs were developed for the Finance Manager, an employee of 5 years standing, doing a different job to the complainant.

The fact that his comparator, a contractor, was not required to comply with KPIs is attributable to the fact that she was a contractor and not an employee. She was measured in other ways. Efforts to replace her were under consideration. She no longer works with the company.

I do not find the imposition of KPIs on the complainant’s performance to be evidence of less favourable treatment on grounds of race.

Failure to have the comparator report to him.

An employer is entitled to fix reporting relationships. While there may have been a logic to the complainant’s expectation, given the interconnectedness of their work, the decision of the respondent to maintain her pre-existing reporting relationship with the Managing Director while collaborating with the complainant on projects is not evidence of less favourable treatment due to his ethnicity.

The relationship between the complainant and the comparator was also conflictual.

Based on the law and the evidence, I find that the complainant has failed to establish that the specific treatment of which he complains is less favourable treatment attributable to his ethnicity.

The complainant has failed, therefore, to establish a case of prima facie discrimination and his claim of discrimination on grounds of raced cannot succeed.

A complaint of harassment on grounds of race.

The next issue for consideration is whether the complainant was subjected to harassment pursuant to Section 14A of the Acts. In this regard, I am required to consider the incidents cited by the complainant, and if they were of sufficient significance to establish a prima facie case of harassment.

 Section 14(A) of the Acts broadly provide that harassment is any

 “Unwanted conduct related to any of the discriminatory grounds”.

This unwanted conduct must have the

 “Purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person” and may “consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material.”

The evidence, contested, and submitted at the hearing was that the Finance Manager needlessly and persistently telephoned the complainant seeking information about budgets and the meaning of particular terms.

The evidence suggests that there was nothing in the questions put to the complainant by the Finance Manager which had as their purpose the violation of

“a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person” and may “consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material.”

 The evidence fails to support the description that the telephone calls were persistent.

I do not find that that the questions put to the complainant were invalid questions.

I accept that the respondent did bring shortfalls to the complainant’s notice

Racial Profiling of the complainant as an instance of harassment.

This was a once off – incident where the complainant, the only person in the building, was asked if he was the security officer. I am unable to accept that the same question may not have landed at the feet of a person of a different ethnicity.

The complainant was unable to provide the date on which this incident occurred. Hence, I am unable to confirm that this particular incident meets the requirements laid out in section 77(5) of the Act which provides jurisdiction to investigate instance of alleged discrimination occurring in the six months prior to the submission of the complaint which would be the period 7/8/23- 6/2/24.

I am unable, therefore, based on the evidence and the law to accept that I have jurisdiction to consider this complaint of harassment.  

However, I recommend that henceforth, the respondent should provide an employee with a copy of the Code of Practice on Harassment and a copy of the Dignity at Work Policy to enable an employee if he or she so elects to make a complaint of alleged harassment on any of the grounds contained in the Act.

I do not find that the incidents complained of amount to harassment on the grounds of race.

Victimisation

 The complainant contends that he was victimised as a reaction to a complaint of unequal and unfair treatment of discrimination made by him to the respondent contrary to section 74(2) of the Act of 1998 as amended.

The act of victimisation was the notification to him of his dismissal on the 24 January.

Relevant law.

Section 74 of the Act of 1998, as amended, defines victimisation as

“(2) For the purposes of this Part, victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs”

In retaliation for

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

(b) any proceedings concerning a claim of discrimination by a complainant,

c) notification of intention to pursue a complaint of discrimination.

The complainant must have taken an action of a type referred to at Section 74(2) of the Acts above before considering if adverse treatment followed and if so, whether or not it was it connected to the exercise of a protected act.

The Labour Court in the case of Department of Defence v Barrett EDA 1017, interpreting section 74(2), set out the obligations which a complainant must meet in order to succeed in a complaint of victimisation:

“1. The Complainant had taken action of a type referred to at s.74(2) of the Acts (a protected act),

2. The Complainant was subjected to adverse treatment by the Respondent, and,

3. The adverse treatment was in reaction to the protected action having been taken by the Complainant.”

In considering whether a complaint of discrimination had been made in a victimisation complaint in the above case the Labour Court stated:

“It is well settled that the protection against victimisation is not limited to situations in which a complaint of discrimination is subsequently upheld. However, the catalyst alleged for the adverse treatment complained of must, in some sense, come within the ambit of one of the protected acts referred to at s.74(2) of the Acts”

 So also, In Moriarty v. Dúchas, DEC-E2003-013, the Equality Tribunal emphasised that the act which results in victimisation must be connected to a reliance on rights set out in section 74(2) of the Employment Equality Acts. She stated

 “It is necessary that a complainant demonstrate the connection between his or her actions in relation to defending entitlements under the Act and the treatment complained of”

The complainant gathered up the complaints which he had submitted to the respondent as evidence of a protected act. This evidence did refer to protests which he had made to the respondent about non-payment for a period of leave in October 2023, and to  a conflict concerning payment  while on  sick leave, about conflicts with a colleague , but while he characterised these responses of the employer as being unfair, and as an affront to his dignity,  he never characterised these concerns as acts of discrimination  or incidents which might prompt him to take proceedings against the respondent as required by section 74(2) of the Act. He did not identify how he had exercised any of the protections set out in section 74(2) of the Act.

The first reference to proceedings came in a referral of the ES.1form ( used in complaints submitted under the Equal Status Acts, 2000-2018)  to the employer on the 7/2/24, which came after the notification to him of his dismissal.

 The protected act (the reference in the ES.1 form) must precede the act of discrimination and must be what triggered the victimisation. But the protected act initiated on 7/2/24 post-dated the notification of the complainant’s dismissal on the 24 /1/24.

The adverse treatment, which is the dismissal of the complainant, coming as it did prior to the protected act cannot meet the third limb of the test laid out in Barrett, namely,

“The adverse treatment was in reaction to the protected action having been taken by the Complainant”.

Based on the evidence and the law, I find that the complainant has failed to demonstrate that the respondent victimised him for exercising a protected act.

I do not find this complaint to be well founded.

I decide that the complainant has failed to establish facts from which discrimination based on grounds of race in terms of section 6(2)(h) and contrary to section 8 of the Act can be inferred. His complaint cannot succeed.

I decide that the respondent did not harass the complainant on the grounds of race.

 I decide that the complainant has failed to establish facts from which victimisation within the meaning of Section 74(2) of the Acts can be inferred. Accordingly, I find that the complainant is not entitled to succeed in respect of this element of his complaint.

Race; harassment; victimisation. Complaints not upheld.