The Equality Tribunal
Employment Equality Acts 1998 to 2008
- V -
Goodbody Stockbrokers Ltd.
(Represented by BCM Hanby Wallace)
File reference: EE/2007/009
Date of issue: 22 March 2010
Keywords - Employment Equality Acts - Discriminatory Treatment - Harassment - Race - Prima Facie Case
1.1 This dispute concerns a claim by Mr Roy Bhasker that he was subjected to discriminatory treatment and harassment by Goodbody Stockbrokers Limited on the grounds of race in terms of section 6(2) of the Employment Equality Acts and contrary to sections 8 and 14 of those Acts.
1.2 The complainant referred a claim of discrimination to the Director of the Equality Tribunal on 30 January 2007 under the Employment Equality Acts. On 28 May, 2009, in accordance with her powers under section 75 of the Acts, the Director then delegated the case to 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 on which date my investigation commenced. Submissions were sought and received from the parties. As required by Section 79(1) and as part of my investigation, I proceeded to hearing on 5 February 2010. All written and oral evidence presented to the Tribunal has been taken into consideration when coming to this decision.
2. SUMMARY OF THE COMPLAINANT'S CASE
2.1 The complainant submitted that he was employed by the respondent from 7 June 2006 on a nine month contract. About one month into the contract he volunteered to move from his original position to provide maternity leave cover in another section. The complainant submitted that when he joined the new section, it became clear to him that he was not wanted: the person who trained him in treated him with impatience, and the team leader initially ignored him but then told the department head that she didn't get along well with him.
2.2 The complainant submitted that from the beginning he was experiencing problems with his computer which affected his work. When the team leader came over to train him, she was heard to mutter "I'll kill you". During this time he twice requested a transfer but was informed that it would simply be transferring the problem. The complainant further submitted that he felt under pressure all of the time and that his team leader was watching his back to catch him making a mistake.
2.3 The complainant submitted that the Performance Management Process is a method used to help staff develop their skills and contribution to the department. The complainant further submitted that he was surprised that there was no positive feedback at all on his performance review. Accordingly he would not sign it and the matter was referred to the department head, as reviewer. The reviewer requested the team leader to amend the performance review, and she did amend it but only a little.
2.4 The complainant submitted that during a second meeting with the reviewer, the reviewer humiliated him in front of his team leader by questioning why he was checking past colleagues work. The complainant further submitted that he felt intimidated and signed his performance review.
2.5 The complainant submitted that following that meeting, he returned to his desk and a colleague shouted out "Pack your bags". The complainant submitted that his colleagues also made comments like 'too old for this' and 'old ******' on other occasions.
2.6 The complainant submitted that he handed in his notice on 10 January 2007 and his work colleague commented 'good riddance', supposedly to his computer.
2.7 The complainant submitted that an ex-colleague informed him that when news came out that he was taking up a case against the respondent, the head of department informed the office not to discuss anything.
2.8 The complainant submitted that his ethnic origin is Eurasian and that he was previously a Malaysian national.
3. SUMMARY OF THE RESPONDENT'S CASE
3.1 The respondent submitted that the complainant alleges that the first discriminatory act was on 16 September 2006 and that the date of the most recent occurrence of discrimination was 15 November 2006.
3.2 The respondent submitted that it is clear that the complainant is unhappy with how he perceives himself to have been treated by the respondent. The respondent further submitted that even if the complainant did establish that he had not been treated fairly during the course of his employment, that in itself does not establish evidence of discriminatory treatment or harassment on the grounds of race.
3.3 The respondent submitted that it was extremely surprised and concerned when it received this complaint. Accordingly, the respondent carried out its own internal investigation into the allegations made by the complainant. The respondent submitted that the internal investigation was conducted in a sensitive and confidential manner, interviewing 14 staff members. The respondent submitted that it is satisfied that the allegations made by the complainant are unfounded.
3.4 The respondent submitted that it is committed to ensuring that all staff members are valued equally and in this context it has a Dignity at Work policy, a Grievance policy and procedure, a separate Harassment policy and an Equal Opportunities policy. The respondent further submitted that when the complainant was first employed he took part in an induction during which these policies were explained to him. The respondent submitted that the complainant never made a complaint under any of the policies mentioned.
3.5 The respondent submitted that the complainant was employed on a fixed-term contract for a period of nine months and worked on two teams during his employment. His work on the latter team was time critical. The respondent submitted that his team leader noticed problems with the complainants performance and spoke with the complainant on a number of occasions. The respondent submitted that the issues raised with the complainant were solely based on performance and that the complainants race had nothing to do with it.
3.6 The respondent submitted that the performance review process was completed in a fair manner and related to performance issues rather than the issue of race.
3.7 The respondent submitted that on 10 January 2007, the team leader informed the complainant that his contract would not be renewed after its expiry in March and that it was made clear to the complainant that this was down to performance issues. Two hours later the complainant gave one months notice and his letter of resignation did not mention harassment and/or discrimination.
3.8 The respondent submitted that as part of its program on the prevention of bullying, a staff presentation was given by the Head of Operations on 25 January 2007. Following that presentation, the complainant approached the Head of operations and raised some of the foregoing issues with him. As a follow-up to that meeting the HR Manager met with the complainant, outlined the complaints procedure, and enquired whether he wished to make a formal complaint. Thereafter, the complainant confirmed that he didn't wish to make a complaint and did not make any allegations of discrimination or harassment on the grounds of race.
4. FINDINGS AND CONCLUSIONS OF THE EQUALITY OFFICER
4.1 The issue for decision by me is whether or not the respondent discriminated against and harassed Mr Bhasker on grounds of race, in terms of section 6 of the Employment Equality Acts and contrary to sections 8 and 14 of those Acts.
4.2 Section 85A of the Employment Equality Acts sets out the burden of proof which applies to claims of discrimination. It requires the complainant to establish, in the first instance, facts from which discrimination may be inferred. 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.
4.3 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 ...". In that regard, I note that the respondent has a series of policies covering Dignity at Work, Harassment, and Equal Opportunities and also has a Grievance Procedure. It was submitted at the hearing that the respondent actively promotes those policies and the evidence given by the complainant supports that contention.
4.4 During the hearing the complainant gave evidence that was broadly consistent with his written submissions sent to the Tribunal prior to the hearing. Although in his original application form, the complainant indicated that the discriminatory treatment took place between 16 September and 15 November 2006 I have considered each of the points raised by the complainant for the entire duration of his employment with the respondent (June 2006 - January 2007). I have considered all of the evidence put forward by the complainant, but find no evidence that the treatment complained of had anything to do with the complainant's race/nationality. Accordingly, I am not satisfied that he has established facts from which discrimination on the race ground may be inferred and the discriminatory treatment element of the complaint fails.
4.5 I have also considered the evidence with a view to the harassment element of the complaint. I find that the remarks complained of had nothing to do with the complainant's race/nationality. Once again, I am not satisfied that the complainant has established facts from which harassment on the race ground may be inferred. Accordingly, the harassment element of the complaint also fails.
5.1 Having considered all the written and oral evidence presented to me, I find that a prima facie case of discriminatory treatment or harassment on the basis of the race ground has not been established and this complaint fails
22 March 2010