Leleji AND Maplin Electronics Ltd, Dublin (Represented by IBEC)
1.1 This dispute concerns a claim by Mr Anthony Leleji that he was discriminated against by Maplin Electronics Ltd on the ground of race contrary to the provisions of the Employment Equality Act, 1998 when he was harassed and subjected to unfavourable working conditions.
1.2 The complainant referred a claim to the Director of Equality Investigations on 8 March 2002 under the Employment Equality Act, 1998. In accordance with her powers under section 75 of that Act, the Director then delegated the case on 18 December 2002 to Anne-Marie Lynch, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Act. Submissions were sought from both parties and a joint hearing was held on 15 January 2004. Subsequent correspondence with the parties concluded on 2 April 2004.
2. SUMMARY OF THE COMPLAINANT'S CASE
2.1 The complainant is a naturalised Briton of Nigerian origin. He was employed as a Sales Assistant in the respondent's electronics store on 28 March 2001 and successfully completed a three month probation period. At that time he was the only black employee in the store. The complainant's salary was €15,000 per annum plus commission based on sales by each employee. In August he was paid €500 in commission.
2.2 The complainant asserted that during the course of his employment he was constantly requested by the Manager to do menial cleaning tasks and he was refused training in administrative work which he had been told at interview would be part of his duties. The complainant said that white employees were not asked to do cleaning and that white staff members, employed after him, were allowed to perform administrative duties.
2.3 The complainant said that the Manager always checked his till at the end of the working day, and did not check the tills of other employees. He said the Manager told him to take instructions from the Security Guard, and did not say this to other members of staff. The complainant also asserted that the Manager swore at him on several occasions, and reacted angrily when the complainant confronted him about this.
2.4 The complainant acknowledged that he received a letter dated 17 August complaining about certain negative aspects of his work. He pointed out that the letter commended the quality of customer service he provided, and that it noted the large number of customers whom he served. The complainant said that he immediately addressed errors which were brought to his attention.
2.5 Within the store, late lunch was more popular because it made the afternoon shift shorter and the complainant said that the Manager always asked him to take an early lunch. According to the complainant, the matter came to a head on 11 September when he requested a late lunch, which was refused by the Manager. The complainant said he also sought a late lunch for the following day because he wished to attend a hospital appointment with his wife who was in the final month of a difficult pregnancy. The Manager did not immediately agree to the request and the complainant became annoyed. He told the Manager he would report him for the less favourable treatment he was receiving and said the Manager was being racist. The complainant's employment terminated on 12 September when he was dismissed with four weeks' pay in lieu of notice.
3. SUMMARY OF THE RESPONDENT'S CASE
3.1 The respondent denied that it had discriminated against the complainant. It pointed out that the Manager complained of was the person who had interviewed and engaged the complainant in the first place. It acknowledged that the complainant had passed his probation period, but said that he had always been a difficult employee to manage.
3.2 The respondent said that commission was paid to all eligible employees if the store exceeded its targets. Eligible employees were those whose attendance records were satisfactory, and included cleaning staff and others who were not engaged directly in sales. The commission paid to the complainant in August 2001, therefore, was not based on his personal performance.
3.3 The respondent rejected the complainant's allegation that he was always asked to perform menial tasks. It said that all staff, including the Manager, would have done some cleaning, and that it had engaged a student from May to September to carry out these tasks. The respondent said that not all staff were trained in administrative duties, and said that the complainant's performance was not good enough to provide him with this training. It pointed out that, in any case, such duties carried no extra pay or other benefits.
3.4 The respondent acknowledged that it was possible that the complainant's till was the only one checked on a regular basis by the Manager, but denied that this was done for discriminatory reasons. The respondent said that the practice was that a till error identified at the end of the working day must be brought to the attention of the Manager. It said that the complainant repeatedly reported significant variances between the total recorded by the cash till and the amount of money counted as being in that till. When checked by the Manager these variances were invariably found to be non-existent. As a result it became necessary for the Manager to always check the complainant's total to ensure it was correct.
3.5 The respondent said that the Security Guard had on one occasion told the complainant that a particular audio mixer was not for sale. The complainant had insisted on removing the security tags from the mixer and sold it to a customer, which left the store without music. The respondent said that all staff would have been expected to accept such instructions from the Security Guard. The respondent rejected the allegation that the Manager swore at the complainant because of his race. The Manager himself accepted that he had a habit of swearing when frustrated or angry, but said there was a difference between using such language and actually swearing at a person.
3.6 The respondent acknowledged that the complainant's time keeping and customer service had been commended in the letter of 17 August, which issued from the company's head office in Yorkshire. It said, however, that the purpose of the letter was to confirm the seriousness of a discussion on 14 August between the complainant and the Manager regarding shortcomings in the complainant's performance. The matters documented in the letter were lack of notice for requests for time off, the necessity to prompt the complainant to review merchandising and stocking of his section of the store and the excessive length of time taken by the complainant to perform basic tasks. The letter concluded that consideration may have to be given to taking disciplinary action if his performance did not improve.
3.7 In relation to the issue of taking lunch, the respondent said that it was necessary to stagger breaks to ensure the efficient operation of the store. The Manager decided when staff members went on their lunch breaks, and would usually grant a request for a particular time if he was notified in advance. The respondent denied that the complainant gave prior notice that he wished to take a late lunch on 11 September, and also denied that the Manager was aware that the complainant wished to visit hospital with his wife. It said that the Manager told the complainant to go to lunch at 12.15pm. When the Manager asked the complainant five minutes later why he was still in the store, the complainant said he wished to go to lunch at 1pm. The Manager pointed out to the complainant that a request to take lunch at a specific time had to be notified in advance, and reminded him that this had been pointed out to him on numerous occasions. The complainant then became abusive to the Manager and accused him of being racist. The Manager referred the matter to the respondent's Head of Human Resources in Yorkshire, and it was agreed to terminate the complainant's employment with immediate effect.
4. INVESTIGATION AND CONCLUSIONS OF THE EQUALITY OFFICER
4.1 In reaching my conclusions in this case I have taken into account all of the submissions, both oral and written, made to me by the parties.
4.2 The complainant alleged that the respondent discriminated against him on the ground of race contrary to the provisions of the Employment Equality Act, 1998. Section 6 of the Act provides that discrimination shall be taken to occur where one person is treated less favourably than another is, has been or would be treated, on one of the discriminatory grounds, which include race. Section 8 provides that:
(1)In relation to-
(b) conditions of employment...
an employer shall not discriminate against an employee or prospective employee...
The complainant also asserted that his dismissal was discriminatory, but such a claim is outside my jurisdiction. Section 77 (2) of the Act provides that claims of discriminatory dismissal may be brought to the Labour Court and shall not be brought to the Director.
The complainant of discrimination against the complainant
4.3 In a recent claim of discrimination on the disability ground taken under the 1998 Act, the Labour Court said "It is now established in the jurisprudence of this Court that in all cases of alleged discrimination a procedural rule for the shifting of the probative burden similar to that prescribed in the case of gender discrimination by the European Community (Burden of Proof in Gender Discrimination Cases) Regulations 2001 (SI NO 337 of 2001) should be applied. The test for determining when the burden of proof shifts is that formulated by this Court in Mitchell v Southern Health Board ( ELR 201) This places the evidential burden on the complainant to establish the primary facts on which they rely and to satisfy the Court that those facts are of sufficient significance to raise an inference of discrimination. If the two limbs of the test are satisfied the onus shifts to the respondent to prove that the principle of equal treatment was not infringed." (Flexo Computer Stationery Ltd and Kevin Coulter [EED0313]). I am satisfied that the same procedural rule should be applied in this claim.
4.4 A number of matters were in dispute between the parties, but it was possible for me to clarify some of them through documentation and evidence given at the hearing. In the first place, the respondent provided me with a copy of its Sales Commission Scheme, from which it is clear that commission was based on net sales in excess of a store's targets and had no connection with any individual's performance. I also received a copy of the respondent's letter of 17 August, confirming that the complainant had certain ongoing shortcomings brought to his attention by the Manager at a meeting on 14 August. In a situation where the complainant's performance was seen as less than satisfactory, I consider it reasonable that consideration would not be given to asking him to carry out new
4.5 With regard to cleaning duties, evidence was given at the hearing by two Assistant Managers (both white) that they had occasionally done these tasks and that the Manager himself had invariably cleaned the toilets in the period before the temporary employment of a student for the summer. It was suggested that the Manager would have done the cleaning before other staff members had arrived and that the complainant may therefore not have seen him do so.
4.6 The complainant acknowledged that he had had discrepancies in reconciling his till although he denied that these were as frequent as asserted by the respondent. In the absence of any further information on the matter, I must accept that the discrepancies which occurred made it reasonable for the Manager to check the complainant's till regularly.
4.7 The parties agree that an argument ensued between the complainant and the Manager on 11 September when the complainant was told he could not go to lunch at 1pm. There was no store roster for lunch breaks and they were decided by the Manager effectively at the last minute. While this may seem haphazard, no evidence was provided to me to demonstrate that the complainant was actually disadvantaged more than other staff members by the practice.
4.8 The fact that the Manager used abusive language in dealing with the complainant was also agreed by the parties. The Manager acknowledged that he had what he described as "a bad habit" of using swear words when annoyed, which he was trying to keep under control. However, the complainant confirmed that he was not claiming that the language used by the Manager was ever racist in content. The complainant said at the hearing that the Manager treated everyone in the same fashion, but that he had decided not to put up with it. Such behaviour is patently unacceptable but, since the complainant confirmed that all staff members were treated similarly, I am unable to consider that it constituted less favourable treatment of the complainant. Taking all of the elements of the complainant's case into account, I find that he has failed to establish a prima facie of discrimination on the ground of race.
5.1 Based on the foregoing, I find that Maplin Electronics Ltd did not discriminate against Mr Leleji on the ground of race, contrary to the provisions of the Employment Equality Act, 1998.
8 June 2004