Employment Equality Acts
Equality Officer Decision
(Represented by Byrne Wallace Solicitors)
File ref: EE/2008/829
Date of Issue: 29 March 2011
Headnotes: Employment Equality Acts, 1998-2008 - Sections 6 ,8, - race- discriminatory comments - access to employment - prima facie case.
1. This dispute involves a claim by Ms G (hereinafter the complainant) that she was discriminated against by Company Z (hereinafter the respondent) on grounds of race, in terms of section 6 of the Employment Equality Act, 1998 and contrary to section 8 of that Act, when in the course of seeking employment with it she was advised that the store would only be employing Irish workers.
2.1 The complainant referred a complaint under the Employment Equality Act, 1998 to the Equality Tribunal on 2 December 2008. In accordance with his powers under the Acts the Director delegated the complaint to Ms Deirdre Sweeney, Equality Officer for investigation and decision and for the exercise of other relevant functions under Part VII of the Act. My investigation of the complaint commenced on 31 January 2011 the date the complaint was delegated to me. Submissions were received from both parties. As required by Section 79(1) of the Acts and as part of my investigation I proceeded to hearing on 10 March 2011.
3. SUMMARY OF COMPLAINANT'S CASE
3.1 The complainant states that on 4 June 2008 she was at one of the respondent's stores. She had heard from a former work colleague that the store was recruiting again. She went upstairs to the office at 11.30 am and as there was no answer there she went to the pay hatch and rang the buzzer. She states that she was told by a woman (Ms A) who came to the hatch that there would be no one in the office until noon. She asked Ms A. could she leave a note with her for the office, Ms A agreed and as she was writing the note, the complainant commented that she had heard the store was recruiting again and that she had worked there previously. Ms A confirmed to her that the respondent was hiring again. The complainant contends that Ms A went on to say that the jobs would only be for Irish people. The complainant further contends that Ms. A went out of sight and she heard her say in a loud voice "There's this English one upstairs looking for a job". Her colleague appeared at the hatch and the complainant states that she asked this second woman "Why are you bringing my nationality into this?" The woman did not reply. The complainant states that she then heard Ms A say "How did she get past security?" Ms A was not in view at this point.
3.2 The complainant states that she then stopped writing her note for the office and did not hand it in. She states that she did not send in a CV after this as she had been told that that the jobs were only for Irish people. She states that she was too upset to tell anyone in the store what had happened and left. She told her mother and her mother's partner who had been shopping in the store. On the same day 4 June 2008 she went to the office of the respondent and wrote a letter there outlining what had happened. She contends that while they said they would deal with the complaint themselves they did not.
3.3 The complainant states that on 6 June she rang Ms B in Human Resources in the head office of the respondent. Ms B assured her that her letter of complaint had been received and that she would be looking after it. Ms B also confirmed that it had been faxed to the regional manager who was on holidays and it would be dealt with on his return. On 9 June the regional manager Mr C rang her and told her that he considered it a serious matter and it would be investigated by him. He said he could contact her in a couple of days. The complainant contends that this changed on 10 June and Mr C instructed a girl Ms D from the respondent's human resources to ring her. Ms. D asked the complainant to meet her. The complainant told her that she had another appointment that day, explained that she had written and given all her details to head office and that she was waiting to hear from Mr. C.
3.4 The complainant states that on 23 June Mr. C rang him and told her that complaint had been investigated by him and he believed his staff. He asked the complainant to go down to the office and the complainant submits that he appeared to be annoyed that she did not go down. The complainant then rang Ms. B in the respondent's head office and asked her for a copy of her original letter of complaint. Ms. B agreed to send her a copy. On 30 June as she had not received the copy she rang Ms. B again. Ms. B advised her that as head office did not have a copy of her letter she had asked the store manager for a copy and she was waiting for same.
3.5 The complainant submits that Mr. C has rang here several times since she complained. He asked her to meet him at a place of her choosing and that this seemed to her to be an unethical way of solving a problem. She feels that her written complaint was sufficient and that the head office of the respondent had said that they would deal with this themselves. She did not wish to go back to the particular store where she was discriminated against by the staff. As Mr. C said that he believed his staff she did not understand why he wanted to meet her. On 7 July, the complainant submits that Mr. C rang her and she told him that she had not received a copy of her letter as she had requested. He replied "what if there is no letter". She alleges that he was suggesting that she did not submit a complaint. She submits that the respondent tried to wear her down and did not deal with the situation at the proper level. She submits that this treatment constitutes discrimination of her on grounds of race contrary to the Employment Equality Act, 1998.
SUMMARY OF RESPONDENT'S CASE
4.1 The respondent denies that the complainant has been subjected to discrimination on the grounds of race, contrary to section 6 of the Employment Equality Acts. The respondent maintains that the complainant was lawfully treated and properly treated at all times and at no time did her race form the basis of any of her treatment by the respondent, its servants or agents. The respondent states that the complainant worked for the respondent from 29 November 2007 to 6 January 2008 on a temporary contract. The respondent submits that it did not have any issues with the complainant's performance during that time and her employment was terminated at the expiration of the temporary contract.
4.2 The respondent states that the complainant presented herself at the cash office security window in or around 11.30 am on 4 June 2008. The respondent states that this office is in a restricted staff area which is not open to the public. The respondent accepts that the complainant was enquiring about a job. The respondent contends that Ms. A advised the complainant that the Personnel Manager Ms. D would not be available until 12 pm and that she should apply through the appropriate channels by leaving an application form or CV at the desk. Ms A states that the complainant explained to her that she really needed a job and requested that she leave a letter on Ms. D's desk. Ms A agreed to this. Ms A denies saying "Z is hiring again but it would only be for Irish girls that had worked there before". The respondent further denies that Ms A kept repeating "only for Irish" in a mocking fashion. The respondent states that Ms A went into the back office as the complainant was writing. Ms A rang the security officer to advise him that the complainant was in a staff area. The security officer asked if the complainant was foreign on the chance that the complainant could not understand Ms. A. Ms A confirmed to the security officer that the complainant had an English accent. She denies saying that "there's this English one upstairs" or "how did she get past security" as alleged or at all. The security officer advised that the complainant should not be in that particular area as it is restricted to staff.
4.3 The respondent states that Ms A's colleague, Ms X then spoke to the complainant and explained to her that the respondent store was holding interviews and that she could apply for a job downstairs at the desk. Ms. X denies that the complainant said to her "why are you bringing my nationality into this". The respondent contends that both Ms A and Ms X submit that the complainant said that she lived locally and not to mind the English accent. The respondent submits that both Ms A and X thought that this was a strange comment to make to them. They both explained to her that she should not be in the staff area. The respondent submits that Ms A states that they then explained to her that not all staff were kept on at Christmas and that loads were let go. Ms A states that the complainant seemed to get agitated at this stage and she walked away without leaving her letter to Ms D.
4.4 The respondent submits that it has made every effort to deal with the complainant's complaint promptly and appropriately. It denies that the complainant was discriminated against as alleged or at all. The complainant first complained to Head Office on 4 June 2008. On 6 June 2008 Ms B explained to the complainant that Mr C would be dealing with the complaint. The complainant raised no issue with this at the time. Mr C promptly telephoned the complainant on his return to work on 9 June, 2008. He advised her that her complaint would be investigated by the respondent. Two days later Ms D, the Personnel Manager of the store, contacted her and explained that as Personnel Manager the complaint had been passed to her by Mr. C to deal with. She invited the complainant to meet with her as part of her investigation to which the complainant agreed. However later that day the complainant contacted Ms D and said that she would not meet with her as she had put her complaint in writing and she wanted a response in writing. Ms D tried to explain to the complainant that she was investigating the matter and that was the reason for wanting to meet with her. However the complainant said "that's all I have to say" and hung up the phone on Ms. D.
4. 5 On 23 June Mr. C contacted the complainant to advise her that her complaint had not been upheld. He again invited her to meet with him which she refused to do. It is denied that Mr. C made light of the situation, as alleged or at all. On the contrary, the respondent took the complainant's complaint seriously, carried out an investigation and invited the complainant to participate in the investigation which she refused to do. The respondent denies that Mr. C behaved in a manner which could be construed as harassment as alleged or at all. It is also denied that Mr. C said from the beginning that he believed his staff. Mr. C committed to investigating the complaint objectively and requested that the complainant participate in the investigation which she refused to do. He sought to meet the complainant at a place of her choosing in an effort to encourage her to meet with him to discuss her complaint as he was of the view that she may be more comfortable meeting at a neutral venue than at the respondent store.
4.6 The respondent submits that Head Office did not have a copy of the complaint as the complaint had been forwarded to the Customer Complaints Department as Ms B does not herself deal with complaints. The respondent accepts that Mr. C called the complainant on 7 July but denies that he tried to wind her up as the complainant alleges. Mr. C took the complainant's complaint seriously and made every effort to carry out a thorough investigation. The respondent denies that it failed to deal with the complaint at the appropriate level. It submits that it was entirely appropriate and normal to nominate Mr. C and Ms D to deal with the complainant's complaint as all complaints are dealt with at store level first. On 16 July Mr. C wrote to the complainant regarding the outcome of the investigation. He explained that his finding following the investigation were that she overheard one side of a telephone conversation between one of the staff in the staff office and security. He assured the complainant that the conversation had nothing to do with recruitment but was related to an unauthorised person being in the respondent's staff areas. He explained to the complainant that security thought that she was a person who did not understand English as she had failed to return to the shop floor after she was informed that she was in an unauthorised area.
4.7 The respondent contends that as the complainant was familiar with the management office area from her previous work experience she should have been aware that it was not appropriate for a customer to be in the staff area. The respondent further contends that as the complainant had previously worked for the respondent she should have been aware to the application procedures relating to job application. The respondent denies that the complainant was refused access to employment with the respondent. The respondent states that it is an equal opportunity employer and does not discriminate on the basis of nationality or race. Mr. C invited the complainant to apply for a position in the store in accordance with the appropriate procedures. She did not avail of this opportunity. The respondent submits that the complainant has not adduced any evidence to establish a prima facie case of discrimination on the grounds of race. The onus of proof remains on the complainant to prove that discrimination occurred and the respondent submits that she has failed to discharge this onus.
5. Conclusions of the Equality Officer
5.1 The issue for decision by me is whether or not the respondent (i) discriminated against the complainant on grounds of race in terms of section 6 of the Acts and contrary to Section 8 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 presented at the hearing.
5.2 Section 6(1) of the Employment Equality Acts 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...". Section 6(2) (h) of the Acts defines the discriminatory ground of race as follows - "as between any 2 persons, ... that they are of different race, colour, nationality or national origins". It follows therefore that the complainant must be the subject of less favourable treatment on grounds of nationality i.e. because she is English.
5.3 Section 85A of the Employment Equality Acts 1998- 2007 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. 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 he 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 that 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 of her, her case cannot succeed.
5.4 The main issue in this complaint is the allegation that Ms. A. made racist comments to the complainant on 4 June 2008 when the complainant was enquiring about job vacancies. There is a clear conflict of evidence as to the conversation that took place at the cash security hatch between the complainant and Ms A and Ms X. All three gave oral evidence at the hearing and that evidence was tested by questioning from the Equality Officer. At the hearing after Ms X had given her evidence, the complainant alleged that Ms X was not the colleague who joined Ms A in speaking with her. The complainant alleged that the respondent had substituted a woman, who was good at giving evidence, for the second woman she had dealt with. The complainant submitted that the second woman in the office that day was tall thin and had red hair. Ms X confirmed that she had never had red hair. The respondent submitted a copy of the complainant's original letter of complaint in evidence at the hearing. The complainant made no reference in this to this second woman having red hair. The complainant suggested that in the original of her letter she had stated that this woman's hair was red. She said that she was 99% certain that she had put in her letter that the second woman had wavy red hair and suggested that the copy had been altered. The respondent accepted that the original of the letter had been destroyed and the copy as submitted was what they had on file. At the hearing I pointed out to the complainant that there was no evidence of any changes or amendments on the copy of her handwritten letter. This was not contested. I am satisfied that the copy as submitted to me is a copy of the complainant's original letter.
5.5 I note that neither in the copy of her original letter of complaint, the referral form to this Tribunal, nor in the complainant's submission, was there any reference to the colour of the second woman's hair. I note that the complainant described the length of this woman's hair in the letter and also described in detail the colour and hairstyle of Ms. A. I consider that if the second woman had red hair, the complainant would have so described her. I note that the respondent identified Ms A and Ms X, as the two people who spoke to the complainant, some days after the complainant's letter of complaint was received. Ms A confirmed that Ms X was the colleague referred to the complainant's letter and Ms X confirmed in her evidence that she was the second person referred to by the complainant. I am satisfied that there is no evidence to support the complainant's allegations that Ms X was not the second woman at the cash office security window and that the respondent had substituted her for another woman.
5.4 In relation to the conversation that took place Ms A gave evidence that she works in the cash office in one of the respondent's stores. On 4 June 2008 a buzzer rang and she went to the hatch to answer it. The complainant was there and she said that she was enquiring about a job. Ms A told her that the Human Resources Manager would not be in her office until noon. The Human Resources Manager's office was further down the corridor. She was surprised that at the complainant's presence and asked her how she had got in as the area is not open to members of the public. She was concerned as the area in which she works is a secure area as it is the cash office for the store. She told the complainant she could apply for a job by leaving an application at the customer service desk. The complainant told her that she had worked there before and asked her for some paper which she gave her. The complainant talked a lot and Ms A found it difficult to finish the conversation and get back to work. She was there with the woman for some minutes. Ms X came out to the hatch to see what was keeping her. While the complainant was at the hatch writing, in view of Ms X, Ms A went away from the hatch into the back office and rang security. She rang the security manager to let him know that this woman was there with them. The security manager asked her if she was foreign and if she did not understand her. She told him that she had an English accent. Ms A categorically denied saying any of the comments either to or about the complainant that the complainant alleges she made. She went back out to the hatch and Ms X was still with the complainant. The complainant said "don't let my accent affect you". Ms A said she was trying to be nice to the complainant but she wanted to get back to work and found it difficult to finish the conversation. They said they had a lot of work to do and slowly walked away. The complainant then left.
5.5 Ms X also gave oral evidence at the hearing. She was not present when Ms A gave her evidence. Ms X's evidence supported the evidence of Ms. A. She stated that they were working in the back office when the buzzer at the hatch went and Ms A went to answer it. She was gone for longer than normal and she, Ms X, went to see what was happening. The complainant was there talking about applying for a job. She told her that she should apply at the customer services desk. The complainant talked a lot and mentioned that she had worked in the store at Christmas. The complainant also said that she lived locally and that they should not mind her English accent. Ms X stated that the complainant was very persistent and they had difficulty in finishing the conversation with her and getting back to work. In the end they were saying to her they were very busy and they had to go. Ms X was adamant that the complainant did not say to either her or Ms A "why are you bringing my nationality into this?"
5.6 The complainant denied that she ever referred to where she lived or referred to her English accent. She stated that she would not do this as she was proud of her nationality and accent. She outlined her version of the conversation that occurred between herself and Ms A and what she overheard Ms A say. This was in line with the written submission she made to which she referred during the hearing. She insisted that the second colleague that joined Ms. A did not say anything to her and that she asked this person "Why are you bringing my nationality into this?" However I note that in the referral form to the Tribunal submitted in December 2008 and in the contemporaneous complaint letter to the respondent written on 4 June 2008 there is no mention whatsoever of the complainant making this statement to either of the people she spoke to.
5.7 In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to Section 85A of the Acts. The Labour Court has stated in Melbury Developments Limited and Valpeters:
"Section 85A of the Act provided 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. While those facts will vary from case to 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."
5.4 On the basis of all the evidence available to me I find the evidence given by the respondent's witnesses to be more credible and I am not convinced that the comments as alleged by the complainant were made by Ms. A. This is not to say that the complainant was not credible but it would appear that she misinterpreted comments by Ms. A. which she overheard. In the circumstances I do not consider that the complainant has established facts from which discrimination may be inferred. I cannot accept that the complainant has established a prima facie case that she was discriminated against on grounds of her race. Therefore the complainant's claim of discrimination on ground of race in relation to access to employment fails.
5.5 In relation to the manner in which the complainant complaint was dealt with by the respondent I feel it is appropriate for me to state that I consider that the respondent dealt with her complaint promptly and appropriately. It was unfortunate that the complainant choose not to engage with the respondent in its investigation of her complaint. .
6. DECISION OF THE EQUALITY OFFICER
6.1 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) the respondent did not discriminate against the complainant on the grounds of race pursuant to section 6(2) of the Acts in relation to access to employment.
29 March 2011