EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E2012-113
(Represented by Michelle Gulgen)
Marks and Spencer (Ireland) Limited
(Represented by IBEC)
File reference: EE/2009/913
Date of issue: 3 September 2012
Head notes: Employment Equality Acts - sections 6, 8, 29 & 74 - promotion/re-grading - victimisation - equal pay - race
1.1 This dispute involves a claim by Mr Mustafa Gulgen that he was discriminated against in relation to promotion/re-grading contrary to section 8 of the Employment Equality Acts, that he was victimised contrary to section 74 of the Acts by Marks and Spencer (Ireland) Limited and that he performs "like work", in terms of section 7 of the Employment Equality Acts with two named comparators and is entitled to equal remuneration in accordance with section 29 of the Acts. on the grounds of race contrary to section 6 of the Acts.
1.2 The complainant referred his claim under the Employment Equality Acts to the Equality Tribunal on 9 December 2009. On 26 March 2012 in accordance with his powers under the Acts the Director delegated the complaint to the undersigned, Hugh Lonsdale, Equality Officer, for investigation and decision and for the exercise of other relevant functions under Part VII of the Acts, on which date my investigation commenced. In accordance with Section 79(1) of the Acts and as part of my investigation I proceeded to a hearing on 4 July 2012 and final information was received on 8 August 2012.
2. SUMMARY OF THE COMPLAINANT'S CASE
2.1 The complainant is Turkish and a naturalised Irish citizen. He started work for the respondent in June 2007 as a Section Manager. The complainant submits that on 26 October 2007 he had a telephone conversation with Ms A from HR regarding a probation review of a Sales Advisor carried out by the complainant and a fellow Section Manager (Ms B). During this conversation she repeatedly said "I can't understand you" and asked the complainant to repeat himself. She also said that he should not be dealing with staff issues and that he did not have human skills. The complainant told his line manager, the Store Manager (Mr C), about the incident and said that he was upset about the way she spoke to him, that he felt demoralised and wanted an apology. After he made this complaint his relationship with Mr C deteriorated.
2.2 The complainant submits that in mid November 2007 a Section Manager position in Grafton Street
became available. He was already a Section Manager but he felt that working in a larger store would help him progress his career. However his Store Manager (Mr C) refused to grant approval for the transfer. The reason given was that he felt the complainant was not adequately trained for the role and that he "could not cope in a unionised environment"
2.3 The complainant later discussed the opportunity to transfer to the Athlone store with Mr C but he
again verbally refused to recommend him for the position so the complainant did not proceed with a written application.
2.4 The complainant made a complaint against Mr C on 24 January 2008 as he was deeply unhappy with Mr C's manner toward him since he had made the complaint against Ms A. They had also disagreed about a development plan that had been made on 11 January 2008. They had a meeting to try and resolve these matters on 7 March 2008. During the meeting the complainant said he did not understand how Mr C could criticise his performance without acknowledging that objectives had not been set, he had no training in the relevant areas and staff attendance was low. Mr C replied: "how can you not understand, I speak plain English". The complainant replied that he also spoke English and said that he did not think matters would be resolved at the meeting and he would pursue his formal complaint.
2.5 On 29 May 2009 the complainant applied for a transfer to the Clarion Quay store. As his then Store
Manager (Mr D) was on leave he spoke to the HR Manager (Collette Wilson) and it was agreed that he could apply for the position and get his line manager approval when he returned from leave, which was after the closing date. The complainant spoke to Mr D on his return and he said he would not be recommending the complainant because he was not suitable. However, despite the complainant asking Mr D why he did not consider him suitable he did not give a satisfactory explanation. He was subsequently informed in writing that he did not sufficient business acumen. The complainant does not accept this explanation as he had provided relief cover in this store on numerous occasions and had received positive feedback from the store manager.
2.6 The complainant submits that on two separate occasions comments have made regarding his
command of English and since making a complaint against unnecessarily racially motivated comments he has been refused a transfer on three occasions. At the same time a Section Manager (Ms E) who worked in the same store as the complainant was sent to Galway for her career development.
2.7 The complainant has also submitted a claim for equal pay relating to annual performance reviews. On 13 August 2008 as part of his Performance Development Review (PDR) his Store Manager (Mr C) gave him no pay rise, whilst two other section managers (Ms B and Ms E) were awarded increases. He claims that he performs like work with both Ms B and Ms E and they are of a different race. On 27 October 2009 his new Store Manager (Mr D) gave him no pay rise under the PDR. Ms B did not pursue a PDR at that time but Ms E moved to Galway as Section Manager and received a pay increase. The complainant submits he was paid €18/hour, whilst Ms B was paid €23/hour and Ms E €22/hour. The complainant carries out the same work as Ms B and Ms E, who are both Irish.
3. SUMMARY OF THE RESPONDENT'S CASE
3.1 The respondent states that the complainant commenced employment with them as a Section Manager in their Dun Laoghaire store on 2 April 2007. His first PDR was held on 12 January 2008 and he was rated effective A. He therefore continued at the scale and pay on which he commenced. On 24 January 2008 the complainant raised a grievance about his PDR. In this complaint he stated that he had first raised his claim in relation to applying for a vacancy in another store in November 2007, as the Store Manager (Mr C) refused to approve his application for the move stating he was not adequately trained for the particular role. On 23 March 2008 a grievance meeting was held and the outcome was confirmed to the complainant by letter on 26 April 2008. This addressed all the issues raised by the complainant and the respondent notes that the complainant did not contest the outcome of the meeting.
3.2 The next PDR was conducted by Mr C on 13 August 2008 and was signed off on 28 August 2008.The complainant was awarded an Effective A rating and no pay increase was awarded.
3.3 The next PDR meeting was on 13 August 2009 and was conducted by Mr D. The complainant appealed the outcome on 24 October 2009. An appeal meeting was held on 8 December 2009 and the respondent confirmed to the complainant on 17 December 2009 that they considered the PDR assessment to be "fair and correct". There was no follow up to this outcome from the complainant.
3.4 On 11 August 2010 the next PDR was held and the complainant was awarded an overall rating of Effective B and moved to the next point on the scale and was awarded a pay rise from €18.12 to €19.48 per hour. The complainant appealed this on 16 August 2010 and an appeal hearing was held on 16 September 2010. The PDR rating was endorsed.
3.5 The respondent submits that they employ 263 Section Managers in Ireland and 178 are employed within Dublin. Staff are assessed on an annual basis and are placed on the hourly rates shown below depending on their skills and PDR reviews. The respondent submits that there is no time scale as to how long an individual may stay on a particular level and 19% of Section Managers on Effective A have been on that scale for more than 3 Years.
3.6 In relation to the two comparators Ms B started working for the respondent in 2004 and was being paid €19.69 when the complainant started, was paid €20.45 in 2008 and this rose to €23.75 in 2009 when she received a Highly Effective B rating. Ms E started in 2007, she was being paid €17.08 when the complainant started, she was paid €17.95 in 2008 and this rose to €21.18 when she received a Highly Effective A rating.
3.7 The respondent submits that the assessments of the complainant for the three moves by his Store Manager relate to his experience and the requirements of the vacancies. They were unrelated to his race or any other events. In 2010 the complainant did get approval from his Store Manager to go for a vacancy in another store but he was unsuccessful. The comparator given by the complainant was sent on secondment to Galway as part of her development but she is on a different level of the Section Manager Scale.
3.8 The respondent submits that the complainant has shown no evidence that any of the incidents are related to his race.
4. FINDINGS AND CONCLUSIONS OF THE EQUALITY OFFICER
4.1 The respondent raised an issue regarding time limits. The second of the allegedly racist comments was made on 7 March 2008, which is more than a year before the complainant made his claim to the Equality Tribunal on 9 December 2009. Also, the last time the complainant was informed he was not being recommended for the last of the three posts he wanted to apply was on 2 June 2009, more than more than six months before he made this claim. The complainant contends that this is one claim with different strands which are linked, including the PDR assessments. The last of these, before he made his claim, was carried out on 27 October 2009 and this is within the six months time limit.
4.2 Section 77 (5) of the Acts states:
(a) Subject to paragraph (b), a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of occurrence of the discrimination or victimisation to which the case relates or, as the case may be, the date of its most recent occurrence.
(b) On application by a complainant the Director or Circuit Court, as the case may be, may, for reasonable cause, direct that in relation to the complainant paragraph (a) shall have effect as if for the reference to a period of 6 months there were substituted a reference to such period not exceeding 12 months as is specified in the direction; and, where such a direction is given, this Part shall have effect accordingly,.
(c) This subsection does not apply in relation to a claim not to be receiving remuneration in accordance with an equal remuneration term."
This claim stems from the complainant's allegations of racism within the respondent and he therefore contends the incidents are linked. Given the nature of the claim I accept that the incidents are linked and the most recent incident occurred within six months of the complainant submitting his claim to the Equality Tribunal. I therefore conclude that all the events to be in time in accordance with section 77 (5) of the Acts.
4.3 The issues for decision by me are whether the complainant was discriminated in relation to promotion/re-grading, if he was victimised and if he has a claim for equal pay on the grounds of race. 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.
4.4 The complainant has given details of two incidents which he considers show an underlying discrimination against him because of his race. He further alleges that he was victimised after he made a complaint about the first of these two incidents. He alleges that because of this underlying racism his career was affected when he was stopped from being considered for three posts. He also alleges he received assessments that were below his level of performance because of his race and this meant he did not receive pay increases which were awarded to the two named comparators and this is the basis of his equal pay claim.
4.5 The respondent contends they are an equal opportunities employer and consequently resent and reject the accusations that they would have caused, allowed or permitted such treatment. They also contend that the complainant has failed to show any link in his accusations to the discriminatory ground.
4.6 In the first incident a member of staff is alleged to have repeatedly said "I can't understand you" during what was a difficult conversation. From the evidence presented by both sides it appears that the comments were connected to the complainant's spoken English. The complainant made an internal complaint about Ms A and she subsequently apologised and the respondent considered the matter closed. No mention of a link to the complainant's race was made or referred to at the time. The complainant contends he only saw the link in the later events which form this claim. The complainant adduced no evidence that Ms A was involved in or linked to anyof the incidents that followed.
4.7 The complaint about the first incident was made to Mr C and the complainant contends he was discriminated against and victimised by Mr C as a result of making the complaint agaimst Ms A. Mr C is alleged to have made the second comment and he carried out the first two PDRs. No direct evidence was given by Mr C but from the evidence provided by the complainant I understand Mr C's comment, "how can you not understand, I speak plain English" to have been made as a response to a comment from the complainant that he did not understand how Mr C could criticise his performance. It appears to have been made in a conversation where the two did not come to an agreement, however it does seem likely the use of the term 'plain English' indicates that Mr C is aware that the complainant is not a native English speaker. The complainant pursued his internal complaint against Mr C but he made no reference to any racial element to Mr C's behaviour.
4.8 The respondent provided correspondence regarding the complainant's appeals against his PDR ratings. Some elements of his complaints about the ratings were upheld, although his overall ratings were not changed. Nowhere in his appeals against his PDR ratings did the complainant make a reference that his race may have been a factor and that includes his appeal in September 2010, which was made after this claim had been submitted.
4.9 I also note that the respondent has a 'Managing Dignity at Work Policy', which refers to the ground of race and includes full procedures for making a complaint and details how such a complaint would be dealt with. The complainant did not use this policy to pursue a grievance in relation to his race.
4.10 At the hearing the complainant made further allegations in stating that he was treated differently in relation to his sick leave, that a grievance he raised was not dealt with as speedily as a complaint against him was dealt with, that he did not receive the same training as other Section Managers and he was criticised for chasing a shoplifter where other Section Managers were praised for doing the same. The respondent did not accept these allegations and provided a rebuttal to all these further allegations.
4.11 This complaint is made on the ground of race but, as held by the Labour Court in Anthony v Margetts¹: "The mere fact that the complainant falls within one of the discriminatory grounds laid down under the Act is not sufficient in itself to establish a claim of discrimination. The complainant must adduce other facts from which it may be inferred on the balance of probabilities that an act of discrimination has occurred." Having completed my investigation I can find no link between the two comments and any of the subsequent incidents. Furthermore, I can find no link between the treatment which the complainant alleges was discriminatory and his race. I understand he disagreed with the respondent's assessment under the PDR system and in their lack of his endorsement to apply for a move but Section 6 of the Employment Equality Acts 2004 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).....". I conclude that no evidence has been given to me that would indicate that anyone else in a comparable situation of a different race was or would be treated any differently in relation to promotion/regarding, that he has adduced no evidence that he suffered any adverse treatment as a result of making a claim of discrimination and therefore no victimisation took place. Furthermore, . I accept the evidence of the respondent in relation to the PDRs and find, in accordance with section 29 (5) of the Acts that "nothing in this Part shall prevent an employer from paying, on grounds other discriminatory grounds, different rates of remuneration to different employees". I therefore find that any difference in pay were for reasons other than race and the complainant has failed to prove his claim of equal pay in relation to the two named comparators.
5. DECISION OF THE EQUALITY OFFICER.
I have concluded my investigation of this complaint and hereby make the following decision in accordance with Section 79(6) of the Employment Equality Acts that the complainant has failed to establish a prima facie case of discrimination in relation to promotion/regarding, victimisation and equal pay on the basis of the race ground and the complaint fails.
3 September 2012
¹ Graham Anthony & Co v Mary Margetts, Labour Court ADE/03/1 - Det No. EDA038