The Equality Tribunal
EMPLOYMENT EQUALITY ACTS 1998-2011
DECISION NO. DEC-2015-077
Allied Irish Banks
(Represented by Mairead McKenna
Instructed by AIB Solicitors)
File reference: EE/2012/473
Date of issue: 21st August 2015
1.1. The case concerns a claim by Ms Gwen Jansen (hereinafter referred to as ‘the complainant’) that she was subject to discrimination by Allied Irish Banks plc (hereinafter referred to as ‘the Respondent’) on the grounds of race, contrary to section 6 of the of the Employment Equality Acts (hereinafter referred to as ‘the Acts’) when she was dismissed from her employment.
1.2. The complainant referred a claim to the Director of the Equality Tribunal on the 7th of September 2012 under the Acts. On the 27th March 2015 in accordance with his powers under section 75 of the Acts, the Director delegated the case to me, Peter Healy, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts, on which date my investigation commenced. Submissions were received from both sides. In accordance with Section 79(1) of the Acts and as part of my investigation I proceeded to a hearing on the 28th May 2015.
2. SUMMARY OF COMPLAINANT'S CASE
2.1. The complainant was employed on a fixed term contract with the respondent from the 7th November 2011 in an administrative role. The complainant’s contract was renewed for a further 10 months on 23rd December 2011 to work in a different administrative area (Area A) of the respondent’s operations.
2.2. The complainant submits that during the course of her employment that the bank failed to provide comphrensive training to her similar to that received by Irish Nationals. She submits that for a time she was working in a small cramped room away from other staff.
2.3. The complainant submits that the respondent provided her with a 512mb computer which was too slow to allow her to work effectively and inferior to computers provided to other employees. She says that she was forced to contact the IT department on a daily basis.
2.4. The complainant submits that her supervisor in Area A (Ms A) treated one member of her team (Mr B) more favourably than others due to an interpersonal relationship and overlooked his poor work performance.
2.5. The complainant submits that on one occasion that Mr B made an offensive racial remark aloud to the general office. This remark caused great offence to the complainant but she did not report it to anyone.
2.6. The complainant submits that, on the 7th March 2012 that she received a text from the recruitment agency informing her that she was not to return to work for the respondent. The complainant says that the respondent failed to give her any reason for her sudden dismissal.
3. SUMMARY OF RESPONDENT’S CASE
3.1 The respondent wholly rejects all aspects of the complaint. The respondent submits that the claims made by the complainant are entirely without merit.
3.2 The respondent submits that complaint is out of time as the last date of discrimination should be the complainant’s last day of employment on 2nd March 2012.
3.3 The respondent submits that the complainant was supplied to them as an agency worker with effect from the 7th November 2011, with an expectation that her assignment would last ten months. In December the complainant was one of twenty two agency staff who was transferred to a specific administrative area (Area A) of the Bank. The respondent submits that the complainant was trained in exactly the same way as other agency staff
3.4 The respondent submits that PCs were assigned to agency workers from an available pool of PCs and that the complainant was not singled out in any way when computers were assigned. The respondent acknowledges that the IT department were contacted to rectify issues and obtain extra memory./storage, but that these issues were not experienced only by the complainant. However, the respondent submits that the speed of any computer could not account for the performance difficulties which resulted in the termination of her arrangement with the Bank.
3.5 The respondent submits that workers in Area A of the Bank’s operations work under strict regulatory requirements and that it’s vital that they follow established strict rules and procedures at all times. The respondent submits that the respondent consistently,
· Challenged and refused to implement the Banks rules and procedures
· Failed to use check lists
· Refused to accept explanations as to why procedures were in place.
· Failed to follow management instructions.
· Made repeated errors and refused management feedback.
3.6 The respondent submits that Ms. A sought to support the complainant and to coach her in order to assist her in reaching an acceptable level of performance in her assignment. Ms. A provided feedback to the complainant in relation to her progress and the matter was escalated to senior management. The respondent submits that, the complaints performance failed to improve and the respondent lawfully exercised its right to end the complainant’s assignment.
3.7 The respondent submits that two other agency staff (Irish nationals) also had their assignments terminated.
4. FINDINGS & CONCLUSION
4.1. I have to decide if the complainant was discriminated against by the respondent, on the ground of race, in relation to her conditions of employment and dismissal when the respondent dispensed with her services as an agency worker. In reaching my decisions 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. At the outset of the hearing I made it clear that I consider the proper comparator in this case to be other relevant agency staff and not permanent employees of the respondent.
4.2. I have to consider is whether all aspects of the complaint were referred within the statutory time limits. Section 77(5) of the Acts provides as follows:
(a) Subject to subsection (6), 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 or, as the case may require, the most recent occurrence of the act of discrimination or victimisation to which the case relates.
(b) On application by a complainant the Director or Circuit Court, as the case may be, may, for reasonable case 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 substitutes a reference to such period not exceeding 12 months as is specified in the direction".
Section 77(6A) of the Acts provides as follows:
For the purposes of this section -
(a) discrimination or victimisation occurs -
(i) if the act constituting it extends over a period, at the end of the
The effect of these provisions is that the complainant can only seek redress in respect of occurrences during the six-month period prior to the date on which the claim was received by the Tribunal unless the acts relied on constitute ongoing discriminatory treatment. I must consider whether there was ongoing discrimination and whether all of the incidents were interlinked.
In considering the issue of whether the matters complained about constitute a chain of linked events or if all of the instances are separate events, I have taken into consideration the Labour Court reasoning in the case of County Louth VEC -v- Johnson EDA0712 which considered if separate acts of discrimination were linked. The Court stated:
"Having examined the matter the Court is satisfied that these alleged discriminatory acts did not occur within the time period specified in the Act for submitting a claim. In certain circumstances, the Court may take into consideration previous occasions in which a Complainant was allegedly discriminated against on the same ground, i.e. where the alleged acts can be considered as separate manifestations of the same disposition to discriminate and the most recent occurrence was within the time period specified in the Act.”
The respondent contends that the complainants employment ended on the 2nd March 2012 and that the referral of the complaint is therefore outside the required six months. Central to the instant case, is the complainants contention that the respondents deliberate refusal to communicate her dismissal and the manner of the dismissal was motivated by the ground of race and resulted in serious determent to her for a number of months after her employment ended. Regardless, the complainant specifically states in the original complaint that discrimination continued until the 26th March. This brings the complaint within time for referral as set out in the Acts. I must consider all instances of the respondent’s treatment of the complainant may be linked. I must decide if a continuum of discrimination exists following examination of those instances.
4.3. 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.
Specific allegations of discrimination.
4.4. At the hearing I allowed the complainant to put forward any evidence of alleged discrimination during her entire time working with the respondent, which only amounted to some six months. The complainant offered only one example of an occasion on which overt discrimination took place (the use of an racial insult) while all other alleged instances of discrimination related to her receiving inferior training, equipment, accommodations and management. I also heard direct evidence from most of the key personnel who dealt with the complainant including her supervisor (Ms A) regarding the respondent’s procedures. I have examined all of the alleged instances of discrimination put forward by the complainant and find the following.
4.5. When questioned directly at hearing about the training provided by the respondent to other agency staff, the complaint could give no specifics to back up her allegation that she received different training from other staff. To the contrary she stated that during the induction that everyone got the same training and that she was “ not treated differently from other people”. The only available evidence is that all agency staff were inducted in the same manner. As the complainant was only in Area A for three months, worked only with a small group of others and has no knowledge of training provided to others, I am satisfied that her assertions that she was precluded from particular training to be pure speculation unsupported by any evidence.
4.6. In relation to the issue of the PC, I accept the complainant’s account that she had problems with her PC, however there is no evidence that this is linked to the ground in question. A the hearing the complainant stated that she knew her computer was worse then others because she had “ asked one other (unknown) person” who said they had gotten an upgrade. I prefer the account put forward by the responded that a number of agency workers had the same problem and that it was dealt with through normal procedures. I find that the complainant is simply speculating in this regard.
4.7. For a number of weeks the complainant was one of seven people working in a back room. I find no evidence of less favourable treatment or any connection to the ground of race.
4.8. The respondent contends that the respondent was not a cooperative worker. At the hearing the complainant persisted in arguing with the respondent about the efficiency of their established administrative procedures. She insisted that she had a better way of doing things. Therefore, I accept the respondent’s account that the complainant refused to implement established procedure and refused to take direction from management. It is clear that the respondent had a reason other then the ground of race for dispensing with the complainants services as an agency worker.
4.9. At the hearing of this complaint Ms A gave direct evidence on behalf of the respondent. I found her evidence to be credible, consistent and I find no evidence that she acted in anything other then a professional manner towards the complainant.
4.10. Based on the oral testimony of the complainant it is clear that she feels that one other employee received better treatment then her due to a personal relationship with a superior. No evidence of this relationship was presented and the allegation is rejected by the superior in question. Regardless, based on the complainant’s assertions alone, in regard to this aspect of her complaint, it is clear that there is no link to the ground of race.
4.11. It is agreed that at no time did the complainant raise her concerns regard race with the respondent and specifically in relation to the one instance of an individual using a racial insult. I find that the respondent has procedures in place to deal with such grievances and would have activated them if required.
4.12. The services of the complainant were retained by the respondent for a relatively short period of just under six months. She was one of twenty two agency workers (nine of whom were foreign nationals). I have examined all of the instances of alleged discrimination put forward by the complainant and find that in each instance (with the exception of the incident of the racial slur) that the complainant has made assertions backed up purely by speculation.
4.13. As an agency worker it was a matter for the employment agency to inform the complainant of the status of her assignments and no fault lies with the respondent in this regard. Having examined all aspect of the conditions of employment put forward by the complainant I find no evidence of less favourable treatment and that the complainant has failed to establish a prima facie case.
5.1 In reaching my decision, I have taken into account all the submissions, written and oral that were made to me. Having investigated the above complaint, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts, 1998 to 2011. I find that
(i) the complainant was not subject to discrimination on the ground of race and her conditions of employment were not affected,
(ii) the complainant was not subject to discriminatory dismissal.
21 August 2015