ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00010653
A Security Operative (2)
A Security Company
Complaint Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998
Date of Adjudication Hearing: 22/05/2018
Workplace Relations Commission Adjudication Officer: Pat Brady
In accordance with Section 79 of the Employment Equality Acts, 1998 - 2015,following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
The complainant had been employed as a Security Operative since August 6th 2015 until his employment ended on December 13th 2017.
Summary of Complainant’s Case:
By way of background, an incident occurred in July regarding an allegation that an acting supervisor had passed sensitive business information in July 2017 outside the workplace
Following a period of annual leave, he says he was subjected to ‘excessive monitoring’ by a supervisor and that this constituted harassment.
He made a complaint about this to the HR department which was not properly investigated.
He says that his supervisor used a term of racial abuse on one occasion.
When a complaint was made against him he was suspended and treated differently to his supervisor who had not been suspended when the complainant made his complaint.
He says that he was victimised and that there was also an act of discrimination in relation to promotions to Site Supervisor positions.
Specifically, a number of his co-workers were promoted, two Irish and one Indian national. The complainant’s country of origin is Pakistan.
He says that he did complaint orally about this to his manager.
The complaint of harassment related to the act of suspension and being moved to another site.
Summary of Respondent’s Case:
The respondent has a very diverse workforce and any suggestion of discrimination is regarded as serious. It has been given no details prior to the hearing about the complaint and finds it difficult to mount a response in the absence of the information that grounds the complaint.
The alleged ‘excessive monitoring was justified by the complainant’s earlier conduct and was no more than the exercise of the normal management function.
There was an investigation into the complaint of harassment and a Manager met with the complainant on July 31st to hear the complainant’s complaints against his supervisor. It was agreed that the situation would be kept under review and managed in a professional manner.
There was a further incident on August 11th in which the complainant was held responsible by the respondent’s client for activating an alarm. This led to a meeting on August 14th to discuss the incident at the end of which the relationship between the complainant and his supervisor was again considered.
The complainant was told that the supervisor had been ‘spoken to’ and reminded that both sides needed to work in a professional manner, with which the complainant agreed.
The following day the complainant sent a text stating ‘I resign immediately under constructive dismissal’ and stating that he would stay at his post until a replacement was arranged. When contacted about this the complainant said that his supervisor’s action in reassigning his location was an act of constructive dismissal.
He was reminded of the agreement of the previous day (above) and advised to use the company grievance procedure.
Regarding the alleged discrimination in respect of the Site Supervisor appointments, all Site Supervisor appointments are advertised and all applicants are interviewed by the respondent, then by the client organisation.
There was no appointment of a Site Supervisor between March and July 2017.
There were no appointments of anybody during this period, from company records. Some officers were seconded in to cover the roles at two locations (one Irish, one Indian) during this period, but it was on a temporary, week to week basis.
Neither of these were promoted to the position, as can be seen from a list of shift supervisors submitted in evidence
The complainant was offered in July 2017 the option to move location on the same basis as interim Shift Supervisor role. He declined this (This was a conversation so is not documented).
With regards to permanent supervisory positions, they are advertised via email sent to all employees at the following address and a copy of the standard letter was submitted.
They are given a closing date by which to apply. There was no discrimination.
Findings and Conclusions:
The onus initially falls on a complainant to establish a prima facie case in complaints under the Employment Equality Acts.
The standard required to establish a prima facie case is relatively low. It is not the same as having to establish that the complaint is likely to succeed; merely that facts have been presented that are of sufficient significance to raise a presumption of discrimination.
Section 85 of the Employment Equality Act deals with the burden of proof in discrimination complaints as follows;
(1) Where in any proceedings facts are established by or on behalf of a person from which it may be presumed that prohibited conduct has occurred in relation to him or her, it is for the respondent to prove the contrary.
A prima facie case establishes three things; that the complainant is covered by the relevant discriminatory grounds, there was specific treatment by the respondent and that the treatment was less favourable that treatment that was or would have been afforded to another person (the comparator) in similar circumstances.
Equality Officers have held, for example in Mr Marcin Wilcocki v Alliance PLC (DEC-S2016-032),, that there must be facts of ‘sufficient significance’ to raise a presumption of discrimination. It is not sufficient to simply be a member of a protected group to render acts discriminatory, if for example no comparator exists or the acts are transparently attributable to a non-discriminatory cause.
Once a prima facie case is established the burden of proof then passes to the respondent.
The complainant appears to have reacted badly to the imposition of closer monitoring in July 2017, and links this to one of the discriminatory grounds; specifically, the race or nationality ground. The only evidence submitted was his allegation that a term of racial abuse was used, and the complainant connects this as a motive for the closer monitoring.
The respondent produced an email to show that the decision to apply this closer monitoring was not that of the supervisor at all, or in any case alone but was a result of an instruction from a manager on July 27th, 2017.
The complainant says that the company failed to investigate his complaint.
While it is true that there was no investigation the reason for this was that the respondent took immediate, alternative informal steps to address the issue and that the complainant was closely involved in this process.
This is a quite normal, and indeed desirable, first step in dealing with a grievance, and is provided for in most grievance procedures; an ‘informal step or mediation’.
The complainant participated in the process. There were two meetings which seemed to make progress to the complainant’s satisfaction.
His decision to resign one day after such a meeting seems inexplicable in that context.
His stated reason was the assignment to a different post but critically he has not established that this act was either one of less favourable treatment or that it was done for a discriminatory reason. The simple fact of being moved to a different site is unlikely, in the absence of persuasive evidence to the contrary, to be an act of discrimination.
He was then, some weeks later the subject of a complaint himself by a female co-worker. He describes the decision to suspend him during the investigation which followed as a discriminatory act also. His reason is that when his supervisor was the subject of his complaint in July he had not been suspended.
The circumstances justifying suspension will vary. But importantly the respondent, with the complainant’s full participation set up a different process for dealing with the complainant’s issues with his supervisor. No investigation was taking place, and on the available facts very little justification for a suspension in that case.
In respect of the other grounds of complaint, I can find no basis for a complaint arising from the alleged filling of the vacancies.
Only two were filled, and on a temporary basis one by an Irish and one by an Indian national. The complainant declined a similar temporary assignment.
The respondent has provided a persuasive rebuttal of the complaints and none of them ground a complaint under the Act.
All of the complaints are without merit and are dismissed.
Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.
For the reasons set out above I do not uphold complaint CA-00014126-001 and it is dismissed
Workplace Relations Commission Adjudication Officer: Pat Brady