Mr. Sid Finlay(Represented by Mr. Power B.L. instructed by the Equality Authority) vs Quinn Direct Insurance Company(Represented by Ms. Kimber B.L. instructed by Morgan McManus Solicitors)
1.1 The dispute concerns a claim by the Equality Authority, on behalf of Mr. Finlay, that he was subjected to discriminatory treatment and harassment on the grounds of religion and race in terms of Sections 6(1), 6(2)(e), 6(2)(h) and 32 of the Employment Equality Act, 1998 and contrary to the provisions of Section 8 of that Act when he was not appointed to the position of manager of the workshop on a permanent basis and when he was harassed on the grounds of his race and his religion. The Equality Authority, on behalf of the complainant, also alleges that he was subjected to victimisation within the meaning of Section 74(2) of the 1998 Act.
2.1 The complainant commenced employment with the respondent organisation as a panel beater in the workshop in June, 2000. He alleges that he was made acting manager of the workshop with effect from the end of October, 2000. The respondent denies this allegation. The complainant (a native of Northern Ireland, raised a Protestant but now an Atheist) further alleges that he was subjected to harassment on the grounds of race and religion by an insurance assessor, a Protestant from Northern Ireland, (hereinafter referred to as Mr. A) who was assigned to the workshop as his administrative assistant. The respondent has also denied this allegation. The complainant also alleges that he was victimised by the respondent in relation to manner in which he was disciplined, the failure to appoint him as manager of the workshop on a permanent basis, his demotion and the requirement for him to work under the direction of Mr. A. The respondent denies that it subjected the complainant to victimisation under the provisions of the Employment Equality Act, 1998.
2.2 Consequently the complainant referred a complaint to the Director of Equality Investigations on 20th July, 2001 under the Employment Equality Act, 1998. In accordance with her powers under Section 75 of that Act the Director then delegated the case to Gerardine Coyle, Equality Officer on 23rd September, 2002 for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Act. Following receipt of submissions from both parties two joint hearings in this claim took place on 11th May and 17th June, 2004. Further additional information was received from the respondent with the final information being received on 6th August, 2004.
3. SUMMARY OF THE CLAIMANT'S SUBMISSION
3.1 According to the complainant he was employed as a workshop manager with the respondent organisation. He claims that he was discriminated against on the grounds of religion and race. This discrimination took the form of demotion, the discriminatory imposition of disciplinary process, harassment, undermining of his work and victimisation. The complainant states that he is claiming discrimination contrary to Sections 6, 8 and 32 of the Employment Equality Act, 1998 on the grounds that he was less favourably treated than another is, has been or would be treated. The complainant submits that the respondent contravened Section 8(1) in discriminating in relation to conditions of employment, Section 8(5) in the refusal of promotion/demotion and Section 8(6) in relation to the operation of the respondent's disciplinary measures. He also alleges that he was harassed and unlawfully victimised in contravention of Section 74 of the 1998 Act.
3.2 The complainant states that he commenced employment with the respondent as a panel beater in its car repair workshop on 26th June, 2000 following two weeks of probation. After some months he was asked by the General Manager to become the workshop manager. The complainant states that he was initially reluctant because of his dyslexia. However in October, 2000 it was agreed that the complainant would operate as acting manager for 4 weeks and if his performance was satisfactory he would assume the position on a permanent basis. On accepting this post the complainant was introduced to Mr. A from Head Office who was to assist him on the administrative side of his work. According to the complainant Mr. A had no previous experience in the body shop repair business. The complainant states that he restructured the business of the work shop and achieved highly satisfactory results and in October, 2000 the work shop returned a profit for the first time. According to the complainant he expected to be made the permanent manager in November, 2000 but this did not happen.
3.3 The complainant states that in December, 2000 he brought certain complaints to the attention of the General Manager regarding the conduct of Mr. A who was making his political beliefs loudly known in the workplace. According to the complainant these concerns were shared by other employees in the workshop. The complainant says that Mr. A had stated that he would not be working on 12th July as he would be marching and that in his spare time he was a member of the Territorial Army, which is the reserve army for the British Army. The complainant further states that Mr. A had wondered why the news, broadcast in the Irish language, was played in the workplace and he referred to it as a foreign language. According to the complainant Mr. A stated that he did not mean any harm by the remarks and the General Manager brushed aside the complainant's concerns and did not deal with them effectively. The complainant states that the comments continued throughout December and at the staff Christmas dinner on 21st December, 2000 Mr. A again made remarks about his background and he referred to 'taigs' which is generally understood to be a derogatory term for Irish members of the Catholic faith. The complainant notes that both the General Manager and the Human Resources Manager failed to take any action when the matter was brought to their attention. It is the complainant's belief that he followed the directions set out in the respondent's handbook for dealing with such matters.
3.4 The complainant states that he was disciplined in January, 2001 for his timekeeping and he accepts that he was late on certain mornings caused by his commitment to his two children as he is a single parent. According to the complainant he had difficulty in leaving home earlier, which was necessary when bad winter weather impacted on road conditions, as there was no child minder to take his children at an earlier time. At a disciplinary meeting in January, 2001 attended by the General Manager, Mr. A, an independent witness and the complainant he (the complainant) states that it was agreed that he would receive a written warning regarding his lateness and on 17th January, 2001 he received this warning. According to the complainant the letter of warning contained five other points not included which were not discussed at the meeting namely non-cooperation with Mr. A, persistent lateness (not just for January), unauthorised absence from work and disregard for company property. The complainant notes that the letter was signed by the Human Resources Manager who was not in attendance at the meeting. It is the complainant's submission that Mr. A operated a practice of clocking in to work and then going home for a time before returning to actually start work.
3.5 According to the complainant he was suspended without pay for three days and on his return to work he attended a meeting with the Human Resources Manager and Mr. A at which his conditions of employment were altered and he was required to take instruction from the Mr. A. He returned to work as a panel beater but he was often told to undertake duties outside that role. It is the complainant's submission that he was been used in a manner that in no way utilised his 25 years experience in body repair. The complainant states that his employment terminated on 26th January, 2001 and the respondent did not confirm this in writing thereby causing him to lose Social Welfare benefits and he did not receive a verbal or written warning as demanded by the respondent's handbook.
3.6 It is alleged that the actions of the respondent in failing to properly deal with the complaints in relation to Mr. A made by the complainant amounts to discrimination on the grounds of race and/or religion. It is further submitted that the race specific and/or religious specific actions of Mr. A constitute harassment of the complainant and that the actions of the respondent thereafter resulted in the complainant been treated differently in the workplace and no steps were taken to cease this different treatment or reverse its effects. According to the complainant he was less favourably treated in the manner in which the disciplinary process was operated against him, in the manner in which he was not made permanent manager of the work shop, his demotion from acting manager and in the manner in which he became subject to Mr. A's direction at work in circumstances where the respondent knew or ought to have known that this would cause him distress. The complainant further submits that the above actions constitute victimisation in that he opposed, in good faith and by lawful means, actions unlawful under the 1998 Act.
3.7 In support of his allegations the complainant relies on the comment of Browne-Wilkinson Lt. in Glasgow City Council v Zafar2 that racial discrimination "...present special problems of proof for complainants since those who discriminate on the grounds of race or gender do not in general advertise their prejudices: indeed they may not even be aware of them". He further relies on the comments of Neill LJ in King v Great Britain-China Centre3 in which he states, inter alia
"(2) It is important to bear in mind that it is unusual to find direct evidence of racial discrimination. Few employers would be prepared to admit such discrimination even to themselves. In some cases the discrimination will not be ill-intentioned but merely based on an assumption that 'he or she would not have fitted in'.
(3) The outcome of the case will therefore usually depend on what inferences it is proper to draw from the primary facts found by the tribunal. These inferences can include, in appropriate cases, any inferences that it is just and equitable to draw in accordance with section 62(2)(b) of the Act of 1976 from an evasive or equivalent reply to a questionnaire.
(3) Though there will be some cases where, for example, the nonselection of the applicant for a post or for promotion is clearly not on racial grounds, a finding of discrimination and a finding of a difference in race will often point to the possibility of racial discrimination. In such circumstances the tribunal will look to the employer for an explanation. If no explanation is then put forward or if the tribunal considers the explanation to be inadequate or unsatisfactory it will be legitimate for the tribunal to infer that the discrimination was on racial grounds".
The complainant notes that both these decisions were accepted by Quirke J. in Davis v DIT4. The complainant seeks appropriate remedies to cease the discrimination and the discriminatory practices pursued by the respondent. He also seeks compensation to redress the distress, discrimination and loss he has suffered.
4. SUMMARY OF THE RESPONDENT'S SUBMISSION
4.1 According to the respondent the complainant was employed by the respondent organisation from 26th June, 2000 until he resigned on 22nd January, 2001. The respondent notes that the complaint of discrimination was received by the Equality Tribunal on 20th July, 2001. It is the respondent's contention that pursuant to the provisions of Section 77(5) of the Employment Equality Act, 1998 the complainant is only permitted to rely on alleged acts of discrimination from 21st January, 2001. According to the respondent the complainant did not attend work on 21st January, 2001 as he was on a period of suspension. He returned to work on 22nd January, 2001 and the only matter relevant to that date and referred to by the complainant in his submission is the allegation that upon his return to work his conditions were altered and he was now to take instructions from Mr. A. The respondent notes that the complainant only attended work on one day after his return to work following suspension. In those circumstances the respondent states that it does not understand how the complainant can contend that he was "often told to undertake duties" or that he was "being used in a manner that in no way utilised his 25 years experience in body repair". The respondent argues that the complainant did not stay at work long enough to form any opinion about what he was being asked to do or the manner in which he was being utilised.
4.2 The respondent does not accept that there was any alteration to the complainant's conditions of employment. According to the respondent the complainant was never employed as a Workshop Manager or as Acting Manager. Rather the complainant at all times worked under the control and direction of Mr. A who was employed as Acting Workshop Manager on a part-time basis. The respondent denies that Mr. A was employed to assist the complainant on the administrative side of the complainant's work as has been alleged. The respondent acknowledges that the complainant had difficulty taking instruction from Mr. A but notes that this was part of the complainant's conditions of employment and the respondent states that at no time did those conditions of employment or the complainant's reporting structure change either on 22nd January, 2001 or at all. In these circumstances the respondent submits that the complainant has failed to adduce any evidence of any discriminatory act that took place on 22nd January, 2001. The respondent notes that the complainant has already instituted proceedings before the Labour Court alleging discriminatory dismissal and this is not a matter that can be considered by the Equality Tribunal. The respondent further notes that the complainant has adduced no evidence of exceptional circumstances that prevented his claim from being referred within the time limit. According to the respondent the complainant's claim is statute barred and the Equality Tribunal has no jurisdiction to deal with it.
4.3 Without prejudice to the foregoing the respondent denies that the complainant was ever discriminated against on grounds of religion, race or otherwise. To the extent that the complainant alleges that the trainee insurance assessor's treatment of him constituted discrimination on the grounds of race or religion the respondent notes that that the complainant and Mr. A were of the same religious Protestant belief. The respondent denies that the complainant ever brought complaints of unacceptable treatment on grounds of race or religion to its attention or at all. Furthermore it is denied that the complainant brought any complaints regarding Mr. A's political beliefs to the attention of the General Manager in December, 2000 or at all. The respondent denies the complainant's alleged concerns about Mr. A making his political beliefs loudly known in the workplace were shared by other employees in the workshop. The allegations of sectarian remarks imputed to the trainee insurance assessor are denied by the respondent. The respondent further denies that the complainant brought any complaint about the trainee insurance assessor's behaviour at the staff Christmas dinner on 21st December, 2000 to the General Manager or to the Human Resources Manager. The respondent notes that the complainant had a grievance procedure available to him but he
did not avail of this procedure.
4.4 In relation to timekeeping the respondent notes that Mr. A's hours of work were different to that of the complainant's and at all times the trainee insurance assessor complied fully with his obligations in that regard. According to the respondent the complainant was summoned to two meetings in January, 2001 to discuss certain concerns relating to his employment. These meetings took place on 4th January, 2001 and on 16th January, 2001. The respondent submits that the latter meeting discussed a number of issues including the complainant's non-cooperation with Mr. A, his persistent
lateness without excuse, his absence from work without permission, his refusal to work or to look for work and his disregard for company property. During the course of this meeting the respondent alleges that the complainant made an off-the-cuff remark about Mr. A taking 12th July off as a holiday and this was emphatically denied by Mr. A. The respondent notes that the matter was not pursued by the complainant and states that this remark cannot be construed as a complaint of harassment on grounds of race or religion by the complainant.
4.5 The respondent states that the complainant was written to on 17th January, 2001 confirming the oral warning issued at the meeting of 16th January, 2001 arising from the matters discussed at the meeting. According to the respondent the complainant was informed in that letter of his right to appeal within five days but he chose not to avail of this procedure. The respondent notes that the complainant was suspended from 17th to 21st January, 2001 and he returned to work on 22nd January, 2001. As arranged a meeting took place between the complainant, the Human Resources Manager and Mr. A. The respondent denies that the complainant's condition of work was altered but it does accept that the complainant was expected to take instruction from Mr. A but this the respondent says was part of his terms and conditions of employment.
4.6 The respondent denies that the complainant's employment was terminated as alleged on 26th January, 2001. It is the respondent's submission that the complainant chose to resign on 22nd January, 2001. The respondent further denies that its actions caused the complainant to lose social welfare benefits. According to the respondent the complainant contacted it on a number of occasions seeking a letter confirming that he had been dismissed and he indicated to the respondent that if he was to receive the letter he would take the matter no further. The respondent states that this was a clear attempt by the complainant to engage it in a defraud of the Department of Social Welfare and this was something it was not prepared to do.
4.7 The respondent relies on Section 15(3) of the Employment Equality Act, 1998 and says that at all material times it had a policy in relation to harassment and discrimination on grounds of, inter alia, race and religion. According to the respondent the complainant did not choose to avail of the procedures set out in that policy and the respondent denies that the complainant made complaints alleged by him about his treatment at work. The respondent further states that it took such steps as were reasonably practicable to prevent any discrimination on the grounds of race or religion from taking place. The respondent denies that the complainant opposed in good faith and by any means actions unlawful under the 1998 Act as alleged or at all. Consequently it states that the claim of victimisation cannot be sustained.
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 The issue for decision in this claim is whether or not the complainant was discriminated against and harassed on the grounds of race and religion in terms of Section 6, 8 and 32 of the Employment Equality Act, 1998. It is also necessary to decide the issue of whether or not the complainant was subjected to victimisation within the meaning of Section 74(2) of the 1998 Act. In making my decision in this claim I have taken into account all of the information, both written and oral, made to me by the parties.
5.2 The first issue to address is whether or not the complainant held the position of acting workshop manager. According to the complainant he commenced employment as a panel beater with the respondent organisation on 26th June, 2000. He was offered the position of acting workshop manager in October, 2000 for a period of 4 weeks with a view to it being made permanent thereafter. The complainant is dyslexic and says that the respondent appointed Mr. A as an administrative assistant to him in his work as acting manager. It is the respondent's submission that, following the retirement of the workshop manager it was decided to place Mr. A in the workshop as manager on a parttime basis and for a short period of time pending the recruitment of a manager. Mr. A took up this position on 27th October, 2000 and the position of manager of the workshop was advertised in the local newspaper on 7th December, 2000. The respondent denies that the complainant was ever put in the position of acting manager as alleged.
5.3 I have examined the various submissions made to me in this claim regarding this position and based on the evidence before me I note that it was Mr. A who opened and closed the workshop on a daily basis. If the complainant held the position of acting manager I am satisfied that this is a duty that would have been expected of him as acting manager and his dyslexia would not have prevented him from undertaking this task. Furthermore in his submission the complainant stated that he had restructured the business of the workshop, achieved highly satisfactory results and in October, 2000 returned a profit for the first time. I note that the respondent submitted evidence supported by detailed documentation that the workshop was making a loss in October, 2000 and had been for some time prior to that. While there was a small profit recorded in December, 2000 there was again a small loss in February, 2001. I am satisfied that if the complainant had held the position of acting manager of the workshop he would have known that it had not made a profit in October, 2000. Furthermore in his submission the complainant stated that efficiency in the workshop improved and in November, 2000 the workshop invoiced for about 80 cars which was an increase from a monthly average of about 18 before he became acting manager. The respondent submitted documented evidence disputing this and argued that based on the records an average of 34 cars were invoiced per month between June and December, 2000. The complainant has alleged that his appointment to the position of acting manager was announced to other staff members in the staff canteen by the General Manager in the presence of the Staff Engineer. A colleague5 of the complainant also confirms that an announcement was made in the staff canteen that the complainant was being appointed to the position of acting manager of the workshop. This colleague was unsure if the Staff Engineer was present at the time. The respondent has denied this and this was also denied by two former employees of the workshop who both stated that the Staff Engineer announced the appointment of Mr. A to the position of acting manager. According to these former employees they reported to Mr. A and not to the complainant. There was documentary evidence submitted by the respondent to show that it was Mr. A who had approved staff leave, signed off on clock cards, etc. On the basis of all of the above I find that the position of acting manager of the workshop was held by Mr. A and not the complainant as alleged. In view of this finding I am satisfied that the complainant was not discriminated against in relation to his alleged promotion/demotion.
5.4 The complainant has alleged that he was discriminated against and harassed by the respondent when he was subjected to sectarian comments motivated by the racial and religious beliefs of Mr. A. It is alleged that Mr. A stated that he would not be working on 12th July as he would be marching. According to the complainant Mr. A was a member of the Territorial Army i.e. a reserve army for the British Army. The complainant says that Mr. A wondered why the news, broadcast in the Irish language, was played in the workshop and he referred to it as a foreign language. It is the complainant's further contention that Mr. A made remarks about his background and referred to 'taigs' which is generally understood to be a derogatory term for Irish members of the Catholic faith. According to the complainant he reported these issues to the General Manager in the 2nd and 3rd week of December, 2000 and to the Human Resource Manager but they failed to take any action. He also approached a Director of the respondent organisation but to no avail. At the hearing of this claim the complainant mentioned that Mr. A also made sectarian comments at the Christmas party.
5.5 The respondent has denied these allegations of harassment. According to the respondent Mr. A did not make any of the comments as alleged by the complainant. Furthermore the two former employees in the workshop both stated that they had never heard any of the comments which are alleged to have been made by Mr. A. The Director of the respondent organisation accepted that the complainant had visited him but only to complain about the manner in which Mr. A was conducting the business. According to the Director no complaints were made to him by the complainant about the alleged racial and religious comments. It is the Human Resource Manager's position that the first time she heard of complaints of racial and religious harassment was on 8th February, 2001 at a meeting with the complainant following his departure from the respondent organisation. The General Manager and the Staff Engineer both deny that they were informed of the allegations by the complainant as alleged. The Staff Engineer stated that he never witnessed any comments of the nature alleged when he visited the workshop. At a disciplinary meeting on 16th January, 2001 the complainant made reference to sectarian comments by Mr. A in the workshop and according to the General Manager this was an off-the-cuff remark. The respondent has also noted that the complainant and Mr. A were both from Northern Ireland originally and both had been Protestants originally.
5.6 The allegations of discriminatory treatment and harassment on the grounds of race and religion relate to the alleged comments about taking 12th July off to march, the alleged comments about the news in Irish being played on the radio in the workshop and the alleged comments by Mr. A that he was a member of the Territorial Army. The only supporting evidence is from Mr. Clarke who himself is taking a similar complaint6. However the respondent, Mr. A, two former employees of the workshop and the Secretary who was employed in the workshop have all denied these allegations.
5.7 I note that the complainant did not put his complaint in writing. While I appreciate that the complainant is dyslexic and this may have proved difficult for him he could have sought the assistance of an acquaintance to formulate a written complaint especially when his alleged verbal complaints were being ignored. The complainant had asked the Secretary in the workshop to read extracts from the respondent's employee handbook so he could have asked her to put his complaint in writing. I note that Mr. A did not take 12th July off work and in those circumstances it would seem unlikely that he would be expressing his intention to take the day off to march. Furthermore the period of time when Mr. A and the complainant were working together was between end October, 2000 and late January, 2001 which was at no time near 12th July. Mr. A accepted that he was a member of the Territorial Army. He indicated that this was for a short period of time (about 1 month) and that he did not mention this fact to his work colleagues. His time in the Territorial Army had pre-dated his employment with the respondent. In subsequent correspondence from the respondent it is clear that Mr. A was a member of the Territorial Army for a year and a half even though he did not report for duty during all of that period. One of the witnesses for the respondent stated that he knew through Mr. A's father that Mr. A was a member of the Territorial Army and he could have inadvertently mentioned it to his colleagues in the workshop. Based on the documentation received this witness was acquainted with Mr. A's father at the time Mr. A was a member of the Territorial Army. I note that the other witness for the respondent and the Secretary indicated that they were not aware of the fact. The allegations in relation to discriminatory treatment and harassment are vague and unsubstantiated by a number of staff who worked in the workshop at the time. Therefore, on the balance of probabilities I find that the evidence does not support the allegations.
5.8 The complainant alleges that he was victimised by the respondent by being treated less favourably in the manner in which the disciplinary process was operated against him, in the fact that he was not made permanent manager of the workshop, by his demotion from acting manager and by being subject to the direction of Mr. A which the respondent ought to have known would have caused his distress. The respondent denies these allegations.
5.9 I am not satisfied that there is any evidence to support the contention that the respondent invoked the disciplinary process only because of the alleged complaints by the complainant of Mr. A. On this basis I do not find that the complainant was treated less favourably by the disciplinary process than any other staff member. I have already found that the complainant was not offered the position of acting manager with a promise of being made permanent. He was not put in a position of acting manager of the workshop and I, therefore, find that he was not victimised by not being made manager on a permanent basis and he was not demoted as I have found that he did not hold the position of acting manager. I am satisfied that the complainant was subject to the direction of Mr. A prior to any allegations being made against Mr. A on the grounds of race and religion. On this basis I do not find that the complainant was victimised when he was told following the disciplinary meeting on 16th January, 2001 that he would be under the direction of Mr. A as this was a restatement of existing practice.
5.10 In its submission the respondent has argued that I have no jurisdiction to investigate this claim as it is statute barred (see paragraphs 4.1 and 4.2 above). Section 77(5) of the Employment Equality Act, 1998 states as follows:
"Subject to subsection (6) 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 the occurrence or, as the case may require, the most recent occurrence of the act of discrimination or victimisation to which the case relates".
The claim in this case was referred on 20th July, 2001 and, according to the complainant, the most recent occurrence of a discriminatory act occurred on 26th January, 2001 while the first occurrence of a discriminatory act was in October, 2000. In view of the conclusion I have reached on the substance (see paragraph 5.7 above) following a full hearing of this claim it is unnecessary to deal with the time limit issue.
5.11 During the course of this investigation the respondent endeavoured to contend that the complainant was not dyslexic. Firstly I did not consider that this point was relevant to this claim as an allegation of discrimination on the grounds of disability was not before me for investigation. Secondly I did not consider that the respondent was qualified to make such a contention in the absence of expert medical opinion and, indeed, I could not draw such a conclusion. I was asked that it be recorded that I had failed to allow the respondent question the complainant as to his credibility.
5.12 In conclusion therefore I find that the complainant was not put into the position of acting manager of the workshop as is alleged. I also find that, on the balance of probabilities and with some hesitation, the evidence does not support the contention that the complainant was discriminated against or harassed by Mr. A on the grounds of race and religion. Finally there is no evidence to support the contention that the complainant was victimised by the respondent in terms of Section 74(2) of the Employment Equality Act, 1998.
6.1 In view of the foregoing I find that Quinn Direct Insurance Company did not subject Mr. Sid Finlay to discrimination, harassment or victimisation in terms of Sections 6, 32 and 74(2) of the Employment Equality Act, 1998 and contrary to the provisions of Section 8 of that Act.
17th September, 2004
2 UK  2 All E.R. 953 at p. 958
3 UK  I.C.R. 516 at 528-529
4 Unreported, High Court, 23rd June, 2000
5 This colleague has also brought a claim of harassment against the respondent - See DEC-E-2004-056
6 Equality Officer Decision - Mr. Clarke v Quinn Direct Insurance Company - DEC-E-2004-056