The Equality Tribunal
Employment Equality Acts 1998 to 2008
(Represented by Taylor & Buchalter Solicitors)
Tesco Ireland Ltd.
(Represented by William Fry Solicitors)
File ref: EE/2006/179
Date of Issue: 23 April 2009
Keywords: Employment Equality Acts 1998 to 2008 – Discriminatory Treatment –Harassment –Race - Victimisation – Prima Facie case
1.1 This dispute concerns a claim by Mr Daniel Moses that he was subjected to discriminatory treatment and harassment by Tesco Ireland Ltd. relating to his conditions of employment on the ground of race in terms of section 6(2) of the Employment Equality Acts, 1998 – 2008 and contrary to section 8 of those Acts and victimisation under the terms of Section 74(2) of the Acts.
1.2 The complainant referred his claim to the Director of the Equality Tribunal on 30 May 2006 under the Employment Equality Acts 1998 - 2004. In accordance with her powers under section 75 of the Acts, the Director then delegated the case to the undersigned Conor Stokes - 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. Submissions were sought and received from the parties, and a hearing was held on 25 January 2008. Additional submissions were received in relation to outstanding queries up to 12 January 2009.
2. SUMMARY OF THE COMPLAINANT'S CASE
2.1 The complainant is employed by Tesco as a security guard at their store in Ashbourne, Co. Meath.
2.2 The complainant submitted that
- he was not provided with an appropriate uniform and that when he purchased a uniform from his own funds, there was an inordinate delay in reimbursing the funds to him
- in July 2005 he was required to hand over keys to the security room when others were not required to do so
- in November 2005, he was required to produce his passport and official documentation when others were not required to do so
- in November 2005, he was required to clock in when others were not required to do so
- in April 2006 he was refused leave to take holidays on a number of occasions
- in May 2006 he received a written warning when he took sick leave
- in February 2007 he was required to stock shelves when other security guards were not required to do so and when it was not included in his duties
- he was verbally abused when he conducted a ‘handover’ procedure with his manager
- he was subjected to racist remarks by his manager on three occasions: 15 June 2005, 22 February & 30 June 2007.
2.3 Following examination of the issue of victimisation with the complainant and his legal representative, no specific arguments were put forward other than that the abuse continued.
3. SUMMARY OF THE RESPONDENT’S CASE
3.1 The respondent denies the claims that it discriminated against the complainant.
3.2 In relation to the uniform, the respondent stated that the complainant was supplied with those parts of the uniform that could be obtained in the complainant’s size (i.e. trousers and shirt). Any failure to supply items was due to the complainant’s extra large size and not due to his race. The issue of re-imbursement of funds related to confusion over the purchase of replacement trousers after a short number of weeks rather than any delay because of his race.
3.3 It was further that in order that the complainant could comply with the requirements for the security staff uniform, the respondent gave €50 to the complainant to purchase black shoes. It was stated that the complainant used the money to buy shoes but that the shoes were the wrong size. When the complainant returned wearing his original brown shoes, he was instructed to get a refund and to either purchase black shoes or refund the money to Tesco. It was submitted that as of the date of the hearing the complainant had done neither.
3.4 The respondent stated that Mr Moses was required to hand over the keys to the security camera room following an incident where his manager at that time found the complainant asleep in the security camera room. The respondent stated that, thereafter, all security staff were required to hand over their keys to the camera room and that where needed, a set of keys was made available in the manager’s office. A witness brought in by the respondent, another security guard, supported the respondent’s assertion that all security guards were required to hand over the camera room keys at that time.
3.5 The respondent stated that the complainant was required to bring in his passport and official documentation when it was realised that there was no up-to-date official paperwork on file for him. It was argued that this was necessary in order for the respondent to comply with the law and the information was not sought solely from the complainant.
3.6 The respondent stated that it requires all hourly paid staff to clock in and out. From about November 2005 the respondent’s Human Resources department was trying to ensure that all staff clocked in and out and undertook a campaign aimed at all staff to try to ensure compliance. The respondent confirmed that the complainant was required to clock in like all staff of an equivalent level (i.e. hourly-paid staff) and, was not treated any less favourably than the majority of staff. At that time, management grades were not obliged to clock in. This issue was raised at union level, and, following agreement with the union, all staff are now required to clock in. A number of clock cards, relating to various staff members wherein this issue was noted, were submitted in support of this contention.
3.7 The respondent agreed that the complainant was not given permission to take leave on one occasion. The reason given for this was that he did not follow the requisite procedures concerning advance notice, rather than being due to his race. Leave was eventually granted when alternative staffing arrangements could be organised. It was submitted that following late notification to the respondent of the impending birth of his child, the complainant was allowed to take leave at short notice.
3.8 The respondent denied issuing a written warning to the complainant when he took sick leave.
3.9 The respondent stated that security guard duties, although not comprehensively written down, included the provision that security guards should assist in minimising loss to the respondent. It was interpreted that this included the replacement of perishable items on shelves following attempted trolley ‘push-outs’ (i.e. the attempt to steal a trolley full of goods). Additionally it was submitted that in the normal course of their duties, security guards should restock items deemed high security in nature – razor blades, condoms, etc. A witness, who was also a security guard, was called and he gave testimony in support of this contention.
3.10 The respondent denied that the complainant was singled out and abused regarding the handover procedure. It was stated that the manager was dissatisfied was with both security guards – the complainant and a counterpart of Irish nationality - and as such does not amount to discrimination on the grounds of race.
3.11 The respondent denied that the complainant was subject to racist remarks. The respondent pointed out that the complainant’s oral recollection of what was actually said differed from his written submissions.
3.12 The respondent denied victimisation of the complainant.
4. Equality Officer’s findings
4.1 The issue for decision by me is whether or not Tesco Ireland discriminated against Mr. Moses on grounds of race, in terms of section 6 of the Employment Equality Acts, 1998-2007 and contrary to section 8 of those Acts and whether victimisation as defined in Section 74(2) has taken place.
4.2 The claimant is of black African origin and it is on this basis that the claim is being pursued.
4.3 Section 85A of the Employment Equality Acts 1998 to 2008 sets out the burden of proof which applies to claims of discrimination. It requires the complainant to establish, in the first instance, facts upon which he can rely in asserting the he suffered discriminatory treatment. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised.
4.4 In the case of Dyflen Publications Limited and Ivana Spasic (ADE/08/7) the Labour Court, in adopting the approach of Mummery LJ in Madrassy v Nomura International plc  IRLR 246, stated that “… the court should consider the primary facts which are relied upon by the complainant in their proper context. It also indicates that in considering if the burden of proof shifts the court should consider any evidence adduced by the respondent …”. When considering this approach a number of matters arise:
4.5 The complainant’s account of events was somewhat vague and lacked detail when he was questioned on specific issues. In relation to the issue of the uniform, the complainant was not in a position to recall with certainty the facts surrounding the issuing of additional uniform items whereas the respondent was able to supply written details, signed by the complainant, in support of its submissions.
4.6 On having to hand over keys to the security camera office when others did not have to do so, the evidence put forward by the respondent is that the complainant was found asleep on the floor of the office. Although the complainant contested the allegation that he was asleep, he did acknowledge that he was in the security camera room, resting on a mat brought in for that purpose. The respondent claimed that keys were requested from all security staff at that time. This position was supported by a witness who was another security guard at that time.
4.7 On having to produce his work permit and official documentation when others did not have to, a witness on behalf of the respondent gave evidence at the hearing and I am satisfied that this was part of a general review of compliance with the employment legislation.
4.8 On the complainant being required to clock in when other employees were not required to, the following evidence was given: the complainant clarified that when referring to others, he considered that security and management were in the one grouping and that as managers did not have to clock in, security staff should not be required to do so either. The respondent submitted that management and security staff did not constitute a single group. It also submitted that tracking the attendance of hourly paid staff is necessary for administrative and accounting purposes and that this was consistent across hourly paid staff groups.
4.9 On the issue of the complainant being denied the possibility to take leave, the respondent submitted that the complainant did not apply for leave with sufficient notice (on one occasion one day’s notice) and that it may not have been possible to grant leave on such occasions. It was submitted that this is a standard administrative practice and does not amount to discrimination.
4.10 On the issue that the complainant was the subjected to racial abuse by two of his managers, both sides gave conflicting evidence as to what happened on the three occasions. Having heard from both of the two managers and the complainant himself, I make the following findings: in relation to the first allegation I am satisfied that no abuse took place. In relation to the other two allegations, I am not in a position to decide one way or the other whether or not the racial abuse happened.
4.11 The evidence put forward by both parties indicates that there were tensions between the complainant and his managers due to issues of work performance and discipline. However, I am not satisfied that the complainant has established, in the first instance, facts upon which he can rely in asserting the he suffered discriminatory treatment. I find that the evidence available to me does not raise a prima facie case to support the claim that the respondent treated the complainant less favourably than any other employee.
4.12 Section 74(2) of the Employment Equality Acts 1998 to 2008 states that “For the purposes of this Part, victimisation occurs where the dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to -
(a) a complaint of discrimination made by the employee to the employer,
(b) any proceedings by a complainant
(c) an employee having represented or otherwise supported a complainant
(d) the work of an employee having been compared with that of another employee for any of the purposes of this Act or any enactment repealed by this Act
(e) an employee having been a witness in any proceedings under this Act or the Equal Status Act 2000 or any such repealed enactment
(f) an employee having opposed by lawful means an act which is unlawful under this Act or the said Act of 2000 or which was unlawful under such repealed enactment, or
(g) an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs.”
4.13 No evidence was presented by the complainant to support the contention that victimisation, as defined in the act occurred.
5.1 Having considered all the written and oral evidence presented to me, I find that a prima facie case of discriminatory treatment on the basis of the race ground has not been established.
5.2 Having considered all the written and oral evidence presented to me, I find that a prima facie case of harassment on the basis of the race ground has not been established.
5.3 On the issue of victimisation, I find that no evidence was offered by the complainant, to substantiate a claim that victimisation, as defined in the Employment Equality Acts, took place.
23 April 2009