THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2011
(represented by IBEC)
File Reference: EE/2011/632
Date of Issue: 30th December 2013
Keywords: Employment Equality Acts 1998-2011, Section 6(1) - less favourable treatment, Section 6(2)(h) – Race, Section 8- conditions of employment, failure to establish a prima facie case.
This dispute concerns a claim by a complainant that she was discriminated against by the above named respondent on the gender and race grounds, in terms of Sections 6(1) and 6(2)(h) of the Employment Equality Acts 1998-2011, pursuant to section 8 in relation to her conditions of employment.
2.1 The complainant referred a complaint under the Employment Equality Acts to the Equality Tribunal on the 7th September 2011 alleging that the respondent discriminated against her contrary to the Acts. In accordance with his powers under section 75 of the Employment Equality Acts, 1998-2011 the Director delegated the case on the 19th March, 2013 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. Written submissions were received from the complainant on the 24th February 2012 and from the respondent on the 25th February 2013. As required by section 79(1) of the Acts and as part of my investigation, I proceeded to hearing on the 29th November, 2013.
3. Complainant’s Case
3.1 The complainant is a Polish national and was employed by the respondent as a sales assistant from November 2008 until 31st of May 2011 when she resigned from the employment. The complainant stated that at first she was very happy in the employment and she got on very well with all her managers. She was moved to a new branch of Heatons in February 2009 and at first she had no complaints about the management in the new store. In 2010 a new store manager Ms. A was appointed and the complainant claims that from then on she subjected her to a hostile working environment and she was called names and told to go back to Poland. On some occasions she was called ‘blind’ or ‘stupid’. She said that Ms. A called names and treated all the staff badly but she treated the Polish staff particularly badly. She said that almost every day a member of staff was crying in the canteen because of the treatment from Ms A. The complainant said that there was a rule in the shop that only English was spoken. She said that she had no difficulty with the rule, but occasionally a Polish or Russian customer would come into the shop and when she tried to assist them and spoke Polish or Russian to them, Ms. A was very aggressive towards her and warned her she could only speak English in the shop. Polish staff were also not allowed to speak Polish in the canteen. The complainant said that she made a verbal complaint to two assistant managers and to the manager in another branch. The complainant said that she requested a move from the shoe department to another department because she hurt her back and M.s A refused her the move. Three weeks later she resigned from the employment.
3.2 The complainant was represented by a solicitor at the time of the referral of the complaint up until the day of the hearing when the solicitor withdrew. In a written submission to the Tribunal he submitted that the complainant did not receive a proper contract of employment and that she was discriminated against in that she was called names. He also submitted that the complainant made a complaint on the confidential telephone line and she also spoke to the HR manager who told her to do something about it herself.
4. Respondent’s case
4.1 The respondent rejects that the complainant was discriminated against on either the gender or race grounds. It was submitted that the complainant was employed as a part-time retail associate at the respondent’s old store in Portlaoise and she was transferred to the new store in August 2009. She worked between 16 and 24 hours per week. The company employed 20 staff in Portlaoise, 4 at management level: 6 males and 14 females, 3 of the 14 females were Polish. The complainant resigned her employment on the 30th of May 2011 and prior to her resignation she did not bring any grievance under the Bullying and Harassment procedures to the attention of the respondent. The respondent submitted that since there was no grievance lodged during the employment the company had no knowledge of the complainant and had no opportunity to address it under the procedures prior to the complainant’s resignation. The respondent submitted that the complainant has failed to provide any supporting evidence in her claim.
4.2 The HR manager said that she never received a complaint about Ms. A’s behaviour from any member of staff during her employment with the company. The company has a grievance procedure which is set out in the Staff Handbook and the company received no complaint from the complainant. The company also operates a confidential help line which is operated by the security staff and the complainant could have made a complaint on this line. She stated if staff were treated in the manner alleged by the complainant the company would want to hear about it as it is not acceptable behaviour from any member of staff. She said that the language of the shop floor is English and all staff are expected to speak English. When an employee is in the canteen they are allowed to speak their own language with colleagues.
It was submitted by the respondent’s representative that the complainant has failed to establish a prima facie case of discriminatory treatment and I was referred to the jurisprudence of the Labour Court in the case of Southern Health Board v Mitchell [ELR201] in relation to establishing a prima facie case. It was further submitted that the complainant made no complaint while she was in the employment and she has produced no evidence of any kind to support the substance of her complaint. It was further submitted that the complainant on the gender ground does not stand up; it was the complainant’s evidence that the alleged verbal abuse was directed at both males and females.
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 grounds of gender and race in terms of section 6(1) and 6(2)(a) and (h) of the Employment Equality Acts, 1998 to 2011 and contrary to section 8 of those Acts as regards her conditions of employment. 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—
(a) that one is a woman and the other is a man (in this Act referred to as ‘‘the gender ground)
(h) that they are of different race, colour, nationality or ethnic
or national origins (in this Act referred to as ‘‘the ground
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”.
The Labour Court in the case of The Southern Health Board v. Dr. Teresa Mitchell DEE 011, 15th February 2001 considered the extent of the evidential burden which a complainant must discharge before a primafacie case of discrimination on grounds of gender can be made. The Labour Court stated that the claimant must:
“.... “establish facts” from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination. It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there was no infringement of the principle of equal treatment.”
In considering Section 85A, as amended, the Labour Court stated in the case of Cork City Council v Kieran McCarthy, Determination No. EDA0821, that:
"Section 85A of the Act, as amended now provides for the allocation of the probative burden as between the parties. It provides, in effect, that where facts are established by or on behalf of a Complainant from which discrimination can be inferred it shall be for the Respondent to prove the absence of discrimination.”
The Labour Court went on to say in that case:
"The type and range of facts which may be relied upon by a complainant can vary significantly from case to case. The law provides that the probative burden shifts where a complainant proves facts from which it may be presumed that there has been direct or indirect discrimination. The language used indicates that where the primary facts alleged are proved it remains for the Court to decide if the inference or presumption contended for can properly be drawn from those facts. This entails a consideration of the range of conclusions which may be appropriately drawn to explain a particular set of facts which are proved in evidence. At the initial stage the complainant is merely seeking to establish a prima facie case. Hence, it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inferences which can be drawn from those facts."
5.2 This requires the Complainants to prove 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, the 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. The complainant’s complaint is as set out at paragraph 3.1 and 3.2 above. The respondent denies that the complainant was discriminated against on any of the grounds claimed. I note that the complainant states that all the employees were treated badly by Ms. A and that they were subjected to name calling and unacceptable behavior. The complainant accepted in evidence that she did not report Ms. A on the confidential line. She submitted that she spoke to 2 assistant managers about the behavior of Ms. A. However the HR manager stated that she never received any complaint about Ms. A. and had no opportunity to address any grievances the complainant had before she left the employment. I am accepting the respondents evidence as being more credible on this point and I am satisfied that the complainant did not make any complaint about Ms. A until she referred the complaint to the Tribunal and after she had left the employment. I note that in section 15(3) of the Acts provides:
(3) In proceedings brought under this Act against an employer in
respect of an act alleged to have been done by an employee of the
employer, it shall be a defence for the employer to prove that the
employer took such steps as were reasonably practicable to prevent
(a) from doing that act, or
(b) from doing in the course of his or her employment acts of
I note that the respondent has a company policy on dealing with Bullying and Harassment in the workplace. I am satisfied that if the complainant had reported the treatment she said she had experienced from her manager that it would have been investigated. It is difficult to see what the respondent could have done about the treatment when the complainant failed to report the matter to them or bring a grievance under the Bullying and Harassment procedures.
5.5 In addition the complainant claimed discriminatory treatment in relation to not getting a contract of employment. I note from the contract of employment presented in evidence that the complainant signed and accepted receipt of the contract on the 19th of January 2009 and shortly after commencing employment.
I note from the complainant’s evidence that all the employees regardless of their nationality were subjected to the abusive treatment by the manager. For a complaint of discrimination to be made out, the complainant must show a nexus between the alleged treatment which occurred and her race. Having evaluated all the evidence in relation to this complaint, I can find no evidence to support a case of discriminatory treatment. Accordingly, I find that the complainant has failed to establish a prima facie case of discrimination in relation to her conditions of emnployment.
5.6 I have also to consider the complaint of gender discrimination. The complainant has adduced no evidence whatsoever to support a claim of discriminatory treatment on the gender ground
6.1 Having investigated the above complaints, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts, I find that:
(i) the respondent did not discriminate against the complainant on the gender and race ground pursuant to sections 6(1), and 6(2)(a) and (h) of the Acts in terms of her conditions of employment and contrary to section 8(1) of the Acts.
30th December 2013