The Equality Tribunal
EMPLOYMENT EQUALITY ACTS 1998 - 2008
EQUALITY OFFICER’S DECISION DEC-E2009-029
(Represented by Ola Ladenegan instructed by
Kevin Tunney Solicitors)
A Respondent (A)
(represented byKevin Callan instructed by
A&L Goodbody Solicitors)
A Respondent (B)
(represented by Conor Power instructed by
McCann Fitzgerald Solicitors)
File reference: EE/2006/202 and EE/2006/203
Date of issue: 17 April 2009
HEADNOTES: Employment Equality Acts, 1998-2008, Sections 6 and 8 - Race - Discriminatory Treatment & Discriminatory Dismissal – Correct Respondent
1.1 This dispute concerns a claim by A Claimant that he was discriminated against by A Respondent (A) and A Respondent (B) on the grounds of race and religion contrary to section 6(2) of the Employment Equality Acts 1998-2008 in relation to access to employment, promotion/re-grading, training, conditions of employment and suffered discriminatory dismissal in terms of section 8 of the Acts and that he suffered harassment and sexual harassment in terms of section 14A of the Acts and that he suffered victimisation and victimisatory dismissal contrary to section 74(2) of the Acts.
1.2 The complainant referred his claims to the Director of the Equality Tribunal on 13 June 2006 under the Employment Equality Acts 1998 and 2004. On 21 September 2007, in accordance with her powers under section 75 of the Acts, the Director delegated the cases to Hugh Lonsdale, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts, on which date my investigation commenced. Submissions were sought and received from both parties and as required by Section 79(1) and as part of my investigation I proceeded to hearing on 20 February 2009 and final information was received on 23 March 2009.
2. CORRECT RESPONDENT
2.1 The complainant named two respondents (A) and (B). Respondent B submitted that they are not a proper respondent. They contend that the complainant’s employer was Respondent A and that they (Respondent B) had no employment relationship to him. Therefore, before proceeding to the substantive claim I have to decide who the correct respondent is.
2.2 The two respondents had an agreement for Respondent A to carry out work for Respondent B who provided funds to cover the costs of carrying out the work. Their agreement states: “It is hereby expressly understood that(respondent B) shall not be responsible for any aspects of the employment of the Investigational Site personnel involved in the Study and neither they nor any other member of the Investigational Site staff shall at any time be or deemed to be, or to act as, employees of ( respondent B)” . Respondent A recruited the complainant and issued him with a contract of employment which stated that the complainant was employed “subject to funding by external resources and if the funding ceases, the employment will cease forthwith”. Thus the terms and conditions of service, including pay, were set by Respondent A, whilst Respondent B provided funding and monitored the work.
2.3 The Employment Equality Acts, 1998-2008 defines an “employee” as “a person who has entered into or works under a contract of employment”; and it is clear that the complainant entered into an employment contract with Respondent A. The complainant had no contract with Respondent B. The only direct contact between the complainant and Respondent B occurred when employees of Respondent B monitored the work. The monitors dealt directly with the complainant but copied all correspondence to the complainant’s manager who was signatory to the agreement for Respondent A.
2.4 I therefore find that the complainant is an employee of Respondent A who is therefore the appropriate respondent and that Respondent B is not a respondent against whom the complainant could take a claim of discrimination in terms of sections 8, 14A or 74(2) of the Acts.
3. SUMMARY OF THE COMPLAINANT'S CASE
3.1 The complainant initially made submissions that he suffered discrimination on two grounds and in relation to many areas. However at the hearing the complainant, through his representative, made submissions that he was discriminated against on the ground of race and in terms of conditions of employment and that he suffered a discriminatory dismissal and confirmed he was not pursuing the other claims.
3.2 The complainant, a Nigerian, submits that he was employed to carry out research and had to carry out all the work himself whereas an Irish colleague employed to carry out similar work had an assistant and two other people to help and had adequate holiday cover. The complainant brought the problems of lack of assistance to the attention of his supervisor but he did nothing about them. The issue about holiday cover was also highlighted by Respondent B’s monitors in one of their reports.
3.3 The complainant submits that he also had inadequate facilities to carry out his work compared to his Irish colleague; in that his office was too small and had inadequate storage facilities. A member of the public made a complaint about the room and this initiated a health and safety audit; which indicated that the room was untidy, had previously been a toilet and was small.
3.4 The complainant submits that this treatment goes against Respondent A’s Dignity and Respect at Work Policy and he made several verbal complaints to his supervisor about these conditions of employment. He also made complaints about other issues and claims none of these were acted on by his supervisor. In June 2005 he put his complaints in writing and had a meeting with a HR Manager. The grievances were acknowledged but all that happened was that he was given a Designated Contact person who could not help resolve the issues. The complainant told the HR Manager that he wanted the formal grievance procedure to begin but nothing happened. However, when his supervisor, who is Irish, put in a complaint against the complainant it was acted on quickly.
3.5 The complainant submits that he was dismissed in June 2006 when his contract came to an end and he was not paid for the last month and this occurred because he had put in his complaint.
3.6 The complainant submits that these incidents amount to discrimination and took place because of his race.
4. SUMMARY OF RESPONDENT A’s CASE
4.1 Respondent A denies discrimination and contends that the complainant has failed to establish a prima facie case of discrimination.
4.2 Respondent A submits that the comparator cited by the complainant in relation to his conditions of employment is not suitable as he worked on a completely separate project. The more suitable comparators are the employees who preceded the complainant who were able to carry out the work satisfactorily on their own and in the same circumstances as the complainant. Also the complainant’s supervisor took over the work quite satisfactorily when the complainant left.
4.3 Respondent A submits that the room used by the complainant was satisfactory for its purpose and records were stored in it but there was no mess in it prior to the complainant using it. Therefore the complainant, in failing to maintain the room, made it difficult for him to work in. Also, respondent A did make another room available for the complainant to use when dealing with members of the public but the complainant chose not to use it.
4.4 Respondent A submits that when the complainant made a number of complaints in June 2005 the HR Manager met with the complainant. At the meeting the complainant stated he wanted to proceed on a formal basis. The HR Manager requested the complainant to consolidate his complaints and re-submit them. They also identified a support person he could contact. At the end of the meeting the HR Manager considered that there was an understanding that the complainant would consolidate his complainants and then come back to the HR Manager to proceed further with his grievance. Respondent A did not feel it was up to them to remind the complainant to submit the consolidated complaints.
4.5 Respondent A submits that the complainant was the subject of disciplinary proceedings and from January 2006 was put on paid leave. When they could not contact the complainant they felt that they had no option but to put him on unpaid leave from 8 May 2006. The complainant’s contract finished in June 2006 and it was not renewed. The complainant would have been paid the money retrospectively if he had contacted the respondent but he didn’t. Respondent A heard nothing until the complainant made his complaint to the Equality Tribunal.
5. FINDINGS & CONCLUSIONS OF THE EQUALITY OFFICER
5.1 The complainant alleges discriminatory treatment on the ground of his race in terms of Section 6(2) (h) of the Employment Equality Acts 1998–2008 in his conditions of employment and that he was subjected to a discriminatory dismissal.
of employment I must consider whether the complainant has established a prima
facie case. Section 85A of the Acts states: “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.” This requires the complainant to establish, in the first
instance, primary facts upon which he can rely in asserting that the alleged
discriminatory treatment took place. It is only where such a prima facie case has
been established that the onus shifts to the respondent to rebut the inference of
5.2 This complaint is made on the ground of race but, as held by the Labour Court in Determination EDA038, Anthony v Margetts: “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 has occurred.”
5.3 The complainant contends that he did not have adequate support and that his working conditions were poor. However, respondent A states that anyone doing the same work would have had those conditions and did so both before and after the complainant worked for the respondent. I can find no evidence that the complainant was treated any differently from anyone else doing the same job would have been.
There was a conflict of evidence as to how the complainant’s grievance was dealt with. However I do find respondent A’s version of events more credible, particularly as this was supported by a contemporaneous note of the meeting, albeit one that was not copied to the complainant.
5.4 I also find that respondent A has given a credible version of events surrounding the complainant’s departure from their employment and the reasons for the non payment of his last month’s salary, particularly as the complainant did not dispute that he was not contactable for a number of months. I find that the complainant was not dismissed but left when his contract finished and he has therefore failed to demonstrate a prima facie case of discrimination in relation to a discriminatory dismissal.
I have investigated the above complainant and make the following decisions in accordance with section 79 of the Acts:
· that respondent B is not a correct respondent in accordance with section 77 (4) (b) of the Acts and I therefore have no jurisdiction to investigate claims of discrimination;
· that respondent A did not discriminate against the complainant in his conditions of employment contrary to section 8 (1) (b) of the Acts, and
· that Respondent A did not dismiss the complainant in a discriminatory manner contrary to section 8 (6) (c) on the ground of race.
17 April 2009