EQUALITY OFFICER'S DECISION NO: DEC-E/2010/186
(REPRESENTED BY RICHARD GROGAN AND ASSOCIATES - SOLICITORS)
CHUBB IRELAND LTD.
File No: EE/2007/440
Date of issue 24 September, 2010
Headnotes: Employment Equality Acts, 1998- 2007 - sections 6,8 &14A - race- discriminatory treatment - conditions of employment - harassment - prima facie case
This dispute involves a claim by Ms. Monika Rybak, who is a Polish national, that she was (i) discriminated against by the respondent in respect of her conditions of employment on grounds of race, in terms of section 6(2) of the Employment Equality Acts, 1998 - 2007 and contrary to section 8 of those Acts and (ii) harassed by the respondent on grounds of gender, in terms of section 6(2) of the Employment Equality Acts, 1998 - 2007 and contrary to section 14A of those Acts. The respondent rejects the complainant's assertions in their entirety.
The complainant was employed by the respondent as a Security Operative for a short period during the early months of 2007. The exact dates of her employment are disputed between the parties. She contends that during her period of employment she was (i) treated less favourably on the basis of her Polish nationality as regards her conditions of employment and (ii) harassed by the respondent on grounds of gender contrary to the Acts. The complainant referred a complaint under the Employment Equality Acts, 1998 - 2007 to the Equality Tribunal on 20 August, 2007. In accordance with her powers under the Acts the Director delegated the complaint to the undersigned - Vivian Jackson, Equality Officer, for investigation, decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. My investigation of the complaint commenced on 6 May, 2010, the date the complaint was delegated to me. Submissions were received from both parties and a Hearing of the complaint took place on 23 July, 2010. At the outset of the Hearing the complainant's representative withdrew elements of the complainant's case in respect of access to employment, training, the provision of a contract of employment and health and safety documentation and the application of the JLC for Security Industry. A small number of points arose at the Hearing on the elements that remained which required further clarification and gave rise to correspondence between the Equality Officer and the parties. This process concluded on 31 August, 2010.
3. SUMMARY OF COMPLAINANT'S CASE
3.1 The complainant, who is a Polish national, contends that she commenced employment with the respondent as a Security Operative on 28 February, 2007 and resigned of her own accord on 7 July, 2007. She states that from the outset her salary was not correct and she was underpaid every week as the respondent applied emergency tax to her. She adds that she contacted a Mr. N about the matter and whilst he told her he would look into it he failed to do so. The complainant further states that she contacted Ms. R in the respondent's HR Department about the matter on a number of occasions and was ignored. She adds that she left in a further copy of her P45 on 15 May, 2007 and her salary payment was regularised a couple of weeks later. It is submitted on the complainant's behalf that a notional Irish comparator would not have been treated in the same manner as her and therefore the respondent discriminated against her on grounds of race contrary to the Acts.
3.2 The complainant states that for the first couple of weeks of her employment she worked, on average, forty hours per week. She adds that she was working at a location which was a distance from her home and she requested a transfer to another location. The complainant states that she was subsequently transferred to a location in Spencer Dock and spent several weeks there before a further transfer to the IFSC. She accepts that both of these locations were closer to her home than her first assignment. The complainant asserts that when she transferred to Spencer Dock her weekly number of hours reduced. It is submitted on her behalf that this constitutes discrimination of her on grounds of race. The complainant further states that when she was assigned to the IFSC she had to wait for her Supervisor to provide cover for her if she needed to use the toilet or have a break. In the course of the Hearing she was unable to say if Irish colleagues were treated differently. It is submitted on her behalf that this constitutes further acts of less favourable treatment because she is Polish.
3.3 The complainant accepts that she attended Induction Training in the Red Cow Hotel on 21 April, 2007 but contends that this was two months after she commenced employment with the respondent. She accepts that she signed a number of documents that day, including the respondent's Grievance Procedure and Harassment Policy, but adds that she signed them because she wanted the job and did not really understand them. She adds that she does not recall receiving the respondent's Staff Handbook. She further states that the Induction Training and all of the documentation she signed were in English and contends that her English was not "great" at that time. It is submitted on her behalf that the alleged behaviour of the respondent constitutes less favourable treatment of the complainant on grounds of race contrary to the Acts - and seeks to rely on the Decision of this Tribunal in 58 Complainants v Goode Concrete in this regard.
3.4 The complainant states that she received a uniform about one week after she started employment. She adds that this uniform was too big and she advised Ms. R of this situation. The complainant states that Ms. R told her she was unable to get a uniform in a small enough size to fit the complainant and the complainant was permitted to wear her own trousers although she was required to wear the remainder of the uniform. She adds that as far as she knew she was the only person who had this problem. The complainant further states that on her transfer to Spencer Dock her male colleagues ridiculed her, telling her she looked funny and she didn't eat enough. She adds that this went on for a while but she ignored it and did not report it - although she was aware of the Harassment Policy she did not understand it. It is submitted on her behalf that this constitutes harassment of her on grounds of gender contrary to the Acts.
4. SUMMARY OF RESPONDENT'S CASE
4.1 The respondent rejects the complainant's assertions in their entirety. It states that the complainant commenced employment on 9 April, 2007 and resigned on 7 July, 2007. It further states that the complainant completed Induction Training on 26 April, 2007 in the course of which she was given the company Staff Handbook and made aware of the Grievance Procedure and the Harassment Policy. It states that when the complainant presented for interview it was noted by the Interviewer on the application form that she had excellent English. It adds that this competency was demonstrated by her on a daily basis throughout the period of her employment as she was able to interact with clients and colleagues without difficulty. In addition, it states the complainant indicated on her CV that she had completed the Cambridge First Certificate in English (FCE) which provides her with a high degree of competency in written and verbal English. The respondent accepts that it provided the Induction Training, Staff Handbook and other documentation in English only and argues that this was reasonable in the light of the foregoing circumstances to assume that the complainant understood the training and documentation. It submits therefore that it did not treat the complainant less favourably on grounds of race contrary to the Acts.
4.2 The respondent states that Ms. R is no longer employed by it and it is therefore unable to comment on the complainant's assertions that she (the complainant) made several attempts to contact her about her salary. It accepts that the complainant was on emergency tax for about four to five weeks at the start of her employment and that there was correspondence between Ms. R and the complainant around 15 May, 2007. It states that the matter was rectified as soon as practicable after that and the complainant received a full refund of the amount deducted in emergency tax in her paycheque on 31 May, 2007. The respondent states that it is not unusual for it to take a number of weeks to rectify an employee's tax affairs and that Irish employees have been treated in the same way. It submits therefore that it did not discriminate against the complainant in respect of this aspect of her complaint.
4.3 The respondent accepts that at the beginning of her employment the complainant was assigned to a location which was not particularly convenient to her home. It states that two weeks after she started she was relocated to Spencer Dock and later to the IFSC - both of which were more convenient to her. It submits therefore that it did not discriminate against the complainant rather it responded to her request promptly. The respondent states that the complainant's contract of employment contained a provision as follows "Hours and place of duty shall vary from week to week as per roster or as directed by Operations Manager/Duty Controller". It adds that the complainant's hours were assigned in accordance with this provision and rejects the assertion that her weekly hours reduced after her transfer to Spencer Dock. It furnished the Tribunal with details of the weekly hours the complainant worked for the duration of her employment in support of this assertion. Finally, it states that the basis upon which breaks are allocated on site is a matter for the local Supervisor. It adds that the nature of the work requires the presence of a member of staff at a particular location at all times and accepts that there may be occasions when there may be delays in relieving someone for a break. It rejects however that any delays which the complainant may have experienced were in any way connected with her nationality.
4.4 The respondent is unable to comment on the complainant's assertion that she spoke with Ms. R about the uniform but states that it has no record of any complaint made by the complainant in respect of the alleged harassment. It states that the complainant had been made aware of the existence of the company's Harassment Policy at her Induction Training and did not utilise it. It submits therefore that it cannot be held liable for any alleged unlawful treatment of a member of staff in circumstances where it was not aware of the alleged behaviour in the first place.
5. CONCLUSIONS OF EQUALITY OFFICER
5.1 The issues for decision by me are whether or not the respondent (i) discriminated against the complainant on grounds of race, in terms of section 6(2) of the Employment Equality Acts, 1998 - 2007 and contrary to section 8 of those Acts as regards her conditions of employment and (ii) harassed the complainant on grounds of gender, in terms of section 6(2) of the Employment Equality Acts, 1998 - 2007 and contrary to section 14A of those Acts. In reaching my Decision I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence of the parties at the Hearing.
5.2 Before examining the substantive aspects of the complainant's claim I must first look at the issue of when the complainant commenced employment with respondent - a matter which is disputed by the parties. The complainant contends that she commenced employment on 28 February, 2007 the respondent asserts it was 9 April, 2007. A number of documents were submitted to the Tribunal by the respondent in support of its assertion. The first of these is the complainant's application form for the post - which is dated 3 April, 2007. The second is a letter from the respondent to the complainant dated 4 April, 2007 offering her employment and setting out some of the terms and conditions which applied to the post. The third is details of the roster for the period, which includes the complainant for the first time on 9 April, 2007 and finally a copy payslip in the complainant's name dated 19 April, 2007 which is consistent with the hours worked by her on the week commencing 9 April, 2007 as per the rosters. The complainant adduced no contradictory documentary evidence. In the circumstances I am satisfied that the complainant was mistaken as to when she commenced employment and find that she started work on 9 April, 2007, as stated by the respondent.
5.3 I shall now look at the first aspect of the complainant's claim - that she was treated less favourably by the respondent in respect of her conditions of employment on grounds of race. Section 6(1) of the Employment Equality Acts, 1998-2007 provides that discrimination shall be taken to occur where "a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2)....." Section 6(2) of the Acts defines the discriminatory ground of race as follows - "as between any two persons ..... that they are of different race, colour, nationality or ethnic or national origins.." It follows therefore that the complainant must be the subject of less favourable treatment in comparison to another person on grounds of nationality i.e. because she is Polish.
5.4 Section 85A of the Employment Equality Acts 1998 - 2007 sets out the burden of proof which applies to claims of discrimination. It provides, in effect, that where facts are established by, or on behalf of, a complainant from which discrimination may be inferred, it shall be for the respondent to prove the absence of discrimination. The test for applying that provision is well settled in a line of Decisions of this Tribunal and the Labour Court and it requires the Complainant to prove the primary facts upon which she relies in seeking to raise an inference of discrimination. It is only if this initial burden is discharged and the Equality Officer is satisfied that the facts as established are of sufficient significance to raise a presumption of discrimination, that the burden of proving there was no infringement of the principle of equal treatment passes to the respondent. If the complainant does not discharge the initial probative burden required her case cannot succeed.
5.5 The first issue raised by the complainant in this element of her complaint relates to the respondent applying emergency tax to her salary for a number of weeks at the start of her employment. It is clear from the payslips furnished by the respondent that it applied emergency tax to the complainant's salary for the first four weeks of her employment. I accept the complainant's assertion that she had furnished the respondent with the necessary tax documentation shortly after she commenced employment but I cannot accept the assertion that its failure to apply it was due to her nationality. The complainant states that she raised the matter with Mr. N initially and he undertook to follow the matter up. However, in the course of the Hearing it emerged that Mr. N was not a member of the respondent's Management or Human Resources Division but was an employee who acted as a local shop steward for the complainant's trade union. It is clear from the complainant's own evidence that when she furnished Ms. R with a second copy of the documents on 15 May, 2007 the matter was rectified shortly thereafter.
5.6 The complainant was unable to point to an employee of a different nationality who had been treated differently to her in similar circumstances, despite the fact that a number of employees of varying nationalities - including Irish - commenced employment around the same time as her. It is submitted on her behalf that the respondent would not have treated a hypothetical Irish comparator in this way and that is the test which the Tribunal should apply. In Toker Developments v Edgars Grods the Labour Court stated it "is settled law that in cases of equal treatment a hypothetical comparator can be relied upon but only where there is some evidential basis upon which it could be concluded that such a comparator would have been treated more favourably in the circumstances of a particular case. ... It would clearly be impermissible for the Court to reach conclusions of fact based upon mere supposition or speculation.". In addition the Court in Businkas v Eupat Ltd endorsed the approach adopted by this Tribunal as regards the use of hypothetical comparator as follows " I have no hesitation in using a hypothetical comparator in appropriate situations such as where it is shown that the existing potential comparators are unsuitable for one reason or another...other employees working for the respondent on the same site were of a different nationality and no reason has been adduced by the complainant as to why they were not suitable as comparators.". In the instant case the complainant has failed to adduce any evidence as to why the other employees who commenced employment with her are not suitable comparators. She has also failed to adduce any evidence to satisfy me that the delay in applying her tax free allowance to her salary is connected in any way whatsoever with her nationality or that the respondent would have treated an Irish employee differently in the circumstances. I find therefore that she has failed to establish a prima facie case of discrimination as regards this element of her complaint.
5.7 The complainant asserts that when she transferred to a location at Spencer Dock a couple of weeks after she commenced employment with the respondent, her hours were reduced and that this constitutes less favourable treatment of her on grounds of race. I do not accept this proposition. In the first instance the complainant was not engaged on the basis that she would receive a minimum of forty hours each week - her conditions of employment clearly states that her hours will vary from week to week with no minimum guarantee. I have examined the rosters furnished by the respondent in respect of complainant and note, in the first instance, that in the course of the Hearing the complainant accepted them as accurate. It is true to say that there are differences between the weekly hours assigned to her but she never fell below 24 hours per week - which is within the range permitted by her contract of employment. When the monthly hours assigned to her during her period of employment are examined they are broadly similar to each other. Disparities can be attributed to annual leave, sick leave and the fact that the complainant had indicated she was not available for work on certain dates. In the circumstances I am not satisfied the complainant has demonstrated that the number of hours assigned to her were reduced on her transfer to Spencer Dock. It follows therefore that she has failed to establish facts from which it could be inferred that she was treated less favourably on grounds of race contrary to the Acts and this element of her complaint fails. As regards the complainant's allegation of discriminatory treatment in respect of her breaks, she adduced no evidence to support her assertion that she was treated less favourably contrary to the Acts and having regard to the Labour Court's dictum in Melbury Developments v Arturs Valpetters that a mere assertion unsupported by evidence is insufficient to satisfy the initial probative burden required under section 85A of the Acts, this element of her complaint cannot succeed.
5.8 The final element of this aspect of the complainant's claim concerns her assertion that the respondent discriminated against her when it provided Induction Training, a Staff Handbook and associated documentation in English and she seeks to rely on the Decision of this Tribunal in 58 Complainants v Goode Concrete in this regard. In that case the Equality Officer found that in circumstances where an employer furnishes its employees with, inter alia, written contracts of employment, it constitutes less favourably treatment of non-Irish employees if the respondent provides them with a contract in English and not in a language which they can understand. The respondent accepts that it provided the Induction Training, Staff Handbook and associated documentation in English only. However, the complainant's circumstances can be distinguished from those which prevailed in respect of the complainants in the Goode case. Firstly, I am satisfied from my own personal observation of the complainant at the Hearing that her level of English is sufficient to enable her understand the training - my view in this regard concurs with the contemporaneous view of the person who interviewed the complainant in April, 2007 who commented that the complainant had "excellent English". Secondly, the complainant had previously worked in Dublin and London for periods comprising two years in jobs in the service industry which required daily interaction with members of the public. Moreover, the complainant stated on her CV that she had completed the Cambridge First Certificate in English (FCE). A copy of what this course entails was furnished by the respondent at the Hearing. It states that it is "an upper intermediate level exam" comprising five papers covering (i) Reading, (ii) Writing, (iii) Use of English, (iv) Listening and (v) Speaking and at the end of the course successful candidates "will have a wide grasp of vocabulary and should be able to use appropriate communication styles for a variety of situations.". In the course of the Hearing the complainant stated that she had never undertaken this course and that she had lied on her CV at the suggestion of a friend. It may well have been prudent for the respondent to require the complainant to produce documentary proof of her alleged qualifications but the fact that it did not cannot now be used by the complainant as a basis on which to ground a claim of unlawful discrimination. I am satisfied, on the basis of the information available to the respondent in April, 2007 - which it believed to be true - that it was reasonable for it to rely upon that information in forming the opinion that the complainant understood the training and the documentation. It follows therefore that the complainant has failed to establish a prima facie case of on this element of her complaint.
5.9 The second aspect of the complainant's case deals with his alleged harassment of her on grounds of gender. She states that it took the form of her colleagues ridiculing her because her uniform was too large for her. It is submitted on her behalf that this ridicule was premised on the fact that she was female. At the Hearing the complainant gave examples of the comments made to her. I have considered them carefully and I cannot accept that they constitute harassment of her contrary to the Acts. Whilst they might not be particularly pleasant they cannot be considered to have "the purpose or effect of violating a person's dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person" in the complainant's case because she is female. Indeed, without wishing to trivialise the complainant's claim the comments could equally apply to a man with a similar outcome. In addition, I am satisfied that the complainant had been made aware of the existence of the respondent's Grievance Procedure and Harassment Policy and in light of my findings in the preceding paragraph I am further satisfied she understood their import and function. It is also clear, from her own evidence as regards her tax affairs, that from early on in her employment she was aware of a route to Ms. R through which she could air her grievance. She accepts however, that she never reported these alleged comments to anyone. In light of the foregoing I find that the complainant has failed to establish a prima facie case of harassment on grounds of race contrary to the Acts and this element of her complaint must fail.
6. DECISION OF THE EQUALITY OFFICER
I have completed my investigation of this complaint and in accordance with section 79(6) of the Employment Equality Acts, 1998-2008 I issue the following decision. I find that -
(i) that the complainant has failed to establish a prima facie case of discrimination on grounds of race in terms of section 6(2) of the Employment Equality Acts, 1998- 2007 and contrary to section 8 of those Acts in respect of her conditions of employment.
(ii) that the complainant has failed to establish a prima facie case of harassment on grounds of gender in terms of section 6(2) of the Employment Equality Acts, 1998- 2007 and contrary to section 14A of those Acts
and her compliant fails in its entirety.
24 September, 2010