THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision DEC - E2011-061
(Represented by Richard Grogan & Associates, Solicitors)
Europa Plus Limited
File Reference: EE/2008/852 & EE/2009/163
Date of Issue: 25th March 2011
Decision DEC - E2011-061
(Represented by Richard Grogan & Associates, Solicitors)
Europa Plus Limited
Employment Equality Acts 1998-2008, Dismissal - Section 2(1), Section 6(1) - less favourable treatment, Section 6(2)(h) - Race, Section 8 conditions of employment, Section 74(2) - victimisation, prima facie case.
1.1 This dispute concerns a claim by a complainant that she was discriminated against by the above named respondent on the gender and race ground, contrary to Sections 6(1), 6(2)(a) and(h) of the Employment Equality Acts 1998-2008 and in terms of Section 8 of that Act in relation to her conditions of employment, dismissal, Section 14A in relation to harassment and sexual harassment and Section 74(2) in relation to victimisation. The complaint on the gender ground, discriminatory dismissal, sexual harassment and harassment were withdrawn at the commencement of the hearing.
2.1 The complainant referred complaints under the Employment Equality Acts to the Equality Tribunal on the 12th December 2008 and 4th March 2009 alleging that the respondent discriminated against her contrary to the Acts. In accordance with his powers under section 75 of the Employment Equality Acts, 1998-2008 the Director delegated the case on 2nd February, 2011 to me, Marian Duffy, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of those Acts. This is the date I commenced my investigation. A written submission was received from the complainant on the 8th April 2009 and from the respondent on the 20th April 2009. As required by section 79(1) of the Acts and as part of my investigation, I proceeded to hearing on the 23rd February, 2011.
3. Summary of the Complainant's Case
3.1 The complainant is a Lithuanian national and speaks both Lithuanian and Russian. She was employed as a cleaner by the respondent from June 2007 until the 29th August 2008. The complainant's case is that the respondent discriminated against her in relation to her conditions of employment in that she did not allow her to talk in Lithuanian with fellow employees. She stated that the respondent who is from the Ukraine and speaks Russian and English only wanted the complainant to speak Russian. The complainant said that there were 3 other Lithuanians employees and some from Latvia, Estonia and England. She said that the respondent only employed people who could speak Russian or English and she only wanted employees to speak in a language she could understand. The complainant said that after she told her employer she was leaving, she received a number of abusive text messages and threats from the respondent stating that no other cleaning company would give her work. She also said that the company referred a case about her to the Labour Relations Commission and this was done after she referred her case under the equality legislation.
4. Respondent's case
4.1 The respondent denied that she discriminated against the complainant on the race ground. She said that she is from the Ukraine and runs a cleaning company. She speaks Russian and English. The company employs a number of different nationalities and she communicated with them in either Russian or English which was the language all the employees understood. She denied that she ever left threatening or abusive messages on the complainant's telephone. She said that she tried to contact the complainant about work but she had her phone turned off. She said that she had no difficulty in the complainant speaking Lithuanian but she wanted her to speak in Russian to her because she did not understand Lithuanian.
4.2 The respondent submitted that the complainant left her employment of her own accord and tried to take some of the clients of the cleaning company with her. The respondent stated that she telephoned her clients to inform them that the complainant was no longer working for and that she would be providing a replacement. Some of the clients informed her that the complainant had offered to work privately for them at a cheaper rate. Following this information she texted the complainant to ask her to return customer keys and outstanding cheques that she had collected from the customers. The respondent said that she also complained about the complainant to a number of bodies including the Labour Relations Commission. Her complaints to the LRC were deemed inadmissible.
5 Conclusions of the Equality Officer
5.1 The issues for decision in this case is whether or not the respondent discriminated against the complainant on the race ground in terms of section 6(1) and 6(2)(h) of the Employment Equality Acts, 1998 to 2008 and contrary to section 8 of those Acts as regards his conditions of employment and I have also to consider whether she was victimised in terms of Section 74(2) of the Act. Section 6 of the Acts inter alia provides:
6. -- (1) "For the purposes of this Act and without prejudice to its
provisions relating to discrimination occurring in particular circumstances,
discrimination shall be taken to occur where --
(a) 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) (in this
Act referred to as the ''discriminatory grounds'') which --
(2) As between any 2 persons, the discriminatory grounds (and
the descriptions of those grounds for the purposes of this Act) are --
(h) that they are of different race, colour, nationality or ethnic
or national origins (in this Act referred to as ''the ground
and Section 74(2) provides
(2) "For the purposes of this Part victimisation occurs where 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
(b) any proceedings by a complainant,
(c) an employee having represented or otherwise supported a
(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
(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.
and Section 85A of the Acts provides:
"(1) 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".
5.2 This requires the Complainants to establish the primary facts upon which she relies in seeking to raise an inference of discrimination. It is only when they have discharged this burden to the satisfaction of an Equality Officer that the burden shifts to the respondent to rebut the inference of discrimination raised. If the complainant does not discharge the initial probative burden required of her, her case cannot succeed. In reaching my decision, I have taken into account all of the submissions, written and oral, made by the parties.
5.3 Firstly I will consider the issues raised by the complainant in relation to her conditions of employment which she contends constitute unlawful discrimination on the race ground contrary to the Acts. She submits that the respondent did not allow her to speak in her own Lithuanian language and insisted that she speak Russian even when she was having a private conversation with her Lithuanian friends. The respondent said that she did not speak Lithuanian but she spoke Russian which was her native language and English and the complainant spoke Russian. Therefore Russian was the common language spoken by the employees who did not speak English. She said that she had no objection to the complainant speaking to other Lithuanian nationals in Lithuanian but if it was about work the complainant had to communicate with her in Russian.
5.4 Under Section 85A above the complainant has to establish facts from which discrimination can be inferred. The complainant has made an allegation about discrimination not backed up by any supporting facts. In assessing this point, I have considered the reasoning in the case Melbury Developments and Valpeters (Det. No. EA AO917) where the Labour Court dealt with the issue of facts and stated:
"Section 85A of the Act provides for the allocation of the probative burden in cases within its ambit. This requires that the Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule."
5.5 The above reasoning of the Labour Court is applicable in this case in that the complainant has made assertions about discrimination unsupported by any supporting evidence. I note that the complainant did not bring any witnesses to the hearing despite the fact that she submitted that she was required to communicate with her Lithuanian friends only in a language understood by the respondent. Having regard to the evidence adduced in the present case, I am not satisfied that the complainant has adduced any evidence from which I could reasonably conclude that she was treated less favourably than an Irish person or a person of a different nationality was treated or would have been, in similar circumstances, in relation to her conditions of employment. Accordingly, I find that the complainant has failed to establish a prima facie case of discrimination in relation to this aspect of her complaint.
5.6 The next matter I have to consider is whether the complainant was victimised. The complainant submits that the respondent sent her threatening and abusive text messages after her employment terminated and she also referred a complaint about her to the LRC. The respondent submitted that she sent text messages to the complainant in response to text messages received from the complainant in response to her leaving the employment and these responses were in relation to outstanding work issues. She said that she also referred complaints to the LRC under the Industrial Relations Acts concerning the complainant leaving the employment and the complaints were deemed inadmissible. She pointed out that these complaints were referred before she was notified that the complainant had made a complaint of discriminatory treatment to the Equality Tribunal in relation to her employment.
5.7 In order for the complainant to establish that she was victimised she has to establish that the adverse treatment she alleges occurred was a reaction to any one of the matters specified from (a) to (g) of section 74(2) cited above. I note that the complainant did not make any complaint about discriminatory treatment before she left the employment nor did any of the matters specified from (a) to (g) cited above occur. It is clear from the evidence that the respondent was notified about the complaint of discriminatory treatment in or about the 3rd of December 2008 whereas the matters which the complainant alleges constitute victimisation happened in late August and early September 2008. I am satisfied therefore; the complainant cannot establish that victimisation occurred as a result of her making a complaint about discriminatory treatment, because the matters she puts forward as evidence of adverse treatment happened before any complaint was made about discrimination. Accordingly, I find that the complainant has failed to establish a prima facie case of victimisation.
6.1 Having investigated the above complaints, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts, 1998 to 2008. I find that:
the respondent did not discriminate against the complainant on the race ground pursuant to sections 6(1), and 6(2)(h) of the Acts and in terms section 8(1) of the Acts;
(ii) the respondent did not victimise the complainant on the race ground in terms of section 74(2) of the Acts.
25th March 2011