FULL RECOMMENDATION
SECTION 83 (1), EMPLOYMENT EQUALITY ACTS, 1998 TO 2011 PARTIES : CHARTERED INSTITUTE OF HOUSING (REPRESENTED BY MS CAOIMHE RUIGROK BL INSTRUCTED BY AMOSS, SOLICITORS) - AND - PATRICIA O' KEEFE DIVISION : Chairman: Ms O'Donnell Employer Member: Ms Connolly Worker Member: Mr McCarthy |
1. Appeal of Adjudication Officer's Decision No: ADJ-00004513.
BACKGROUND:
2. The Worker appealed the Decision of the Adjudication Officer to the Labour Court in accordance with Section 83(1) of the Employment Equality Acts, 1998 to 2011. A Labour Court hearing took place on 11 April 2018. The following is the Determination of the Court:
DETERMINATION:
Introduction
This is an appeal byPatricia O’Keefe(the Complainant) against the decision of an Adjudication Officer in her complaint of Discriminatory Dismissal on the ground of race and disability. The complaints were made pursuant to the Employment Equality Acts 1998-2015 (the Act).
The Adjudication Officer found that the complaints were not well-founded.
Background
Ms O’Keefe commenced employment with the Chartered Institute of Housing (the Respondent) on the 21stApril 2015 and was dismissed on the 31stJanuary 2016. It is the Complainant's contention that she was discriminated against on the grounds of race and an imputed disability. The Complainant alleges that the discrimination was both direct and indirect and that she also suffered harassment and victimisation which ultimately culminated in her dismissal. The specifics of the Complainant’s initial complaints were difficult to identify so the Court held a case management conference in advance of the hearing.
The Respondent disputes these allegations and raised the issue of time limits. It is their contention that the issues that the Complaint alleges are acts of discrimination all occurred outside the cognisable period and even if some of the incidents fell within the time limits the Complainant had not established a prima facia case of discrimination. The Respondent contends that Ms O’Keeffe did not successfully complete her probation and that was why she was dismissed. The Court decided to deal with the issue of the cognisable period and the establishing of a prima facie case as preliminary issues. The Complainant lodged a complaint with the Workplace Relations Commission on 19th July 2016 therefore the cognisable period for the purpose of the claim is 20thJanuary 2016 to the 19thJuly 2006.
Complainant’s case
It is the Complainant’s case that she was discriminated on the grounds of race and an imputed disability, that the discrimination was both direct and indirect and that she also suffered harassment and victimisation which ultimately culminated in her dismissal. The Complainant identified the following as Acts of discrimination that fall within the cognisable period:-
Failure to provide reasonable accommodation. It is the Complainant’s case that a hearing impairment was imputed to her in the 18thDecember 2015 and from that date till the end of her employment the Respondent was obliged to provide reasonable accommodation in relation to same. The Complainant informed the Court that she became aware of the imputed hearing impairment in March 2016.
Dismissal: The Complainant attributes her dismissal to discrimination on the basis of race and disability. On the disability ground it is her contention that the imputed hearing impairment informed the decision to dismiss her.
In relation to the race ground she contends that she was not given the same support as a colleague in the office in Northern Ireland who she contends is of a different nationality. In particular, she relies on an incident where she requested assistance and was advised that priority was being given to the Northern Ireland project and that she needed to give more notice of projects that she required assistance for.
Probation: the Complainant claims she was discriminated on race grounds in relation to her probation when she was officially informed on the 21stJuly that she was not being confirmed in her appointment. It is her contention that this was because she had submitted an email raising a number of concerns. A similar email was submitted by another colleague who she contends was a different race. She acknowledges that the other person was not on probation.
Grievance procedure; It is the Complainant’s claim that she raised a grievance which was ignored because of her race.
Breach of confidentiality; It is the Complainants claim that the Respondent told a third party that she was not being confirmed in her appointment and that this was discrimination based on race.
Harassment; It is the Complainant’s case that she was harassed on the basis of race when she was asked to drop keys and equipment back to the third party from whose offices she worked.
Victimisation; It is the complainant’s case that she was victimised when she was placed on gardening leave in advance of her employment being terminated.
Respondent’s case
The Respondent disputes that the Complainant was discriminated against in any way under any ground nor was she harassed or victimised. It is the Respondents case that the Complainant has not raised a prima facia case under any of the grounds and nor has she identified a discriminatory act under any of the grounds within the cognisable period.
The Respondent does not deny that the Complainant’s employment was terminated. It is the Respondent’s position that it was prepared to confirm the Complainant in position following an extended probationary period as there had been some improvement in her performance. However, on the 7thJanuary the Complainant had sent emails of an inappropriate tone to employees which caused the Respondent to re-asses her suitability for the job. A final probation meeting was held on the 19thJanuary at which time the Complainant was informed that her contract would be terminated at the end of January.
The applicable law
Discrimination for the purposes of this Act.
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 insubsection (2)(in this Act referred to as the ‘ discriminatory grounds ’ ) which —
(i) exists,
(ii) existed but no longer exists,
(iii) may exist in the future, or
(iv) is imputed to the person concerned,
(b) a person who is associated with another person —
(i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and
(ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue ofparagraph (a), constitute discrimination.
(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”),
(b) that they are of different F15[civil status](in this Act referred to as “theF15[civil status]ground”),
(c) that one has family status and the other does not (in this Act referred to as “the family status ground”),
(d) that they are of different sexual orientation (in this Act referred to as “the sexual orientation ground”),
(e) that one has a different religious belief from the other, or that one has a religious belief and the other has not (in this Act referred to as “the religion ground”),
(f) that they are of different ages, but subject tosubsection (3)(in this Act referred to as “the age ground”),
(g) that one is a person with a disability and the other either is not or is a person with a different disability (in this Act referred to as “the disability ground”),
(h) that they are of different race, colour, nationality or ethnic or national origins (in this Act referred to as “the ground of race”),
(i) that one is a member of the Traveller community and the other is not (in this Act referred to as “the Traveller community ground”).
(2A) Without prejudice to the generality ofsubsections (1)and(2, discrimination on the gender ground shall be taken to occur where, on a ground related to her pregnancy or maternity leave, a woman employee is treated, contrary to any statutory requirement, less favourably than another employee is, has been or would be treated.
Discussion and Determination
The Complainant alleges that she was discriminated against on the grounds of disability and race. In a claim of discrimination under the Act it is for the Complainant in the first instant to establish surrounding or primary facts which could lead to an inference that discrimination has occurred before the burden of proof shifts to the Respondent. There is a three-tiered test for establishing if the burden shifts to the Respondent which is often referred to as the “Mitchell” test.
It provides:-
1) It is for the Complainant to prove the primary facts upon which he or she relies in seeking to raise a presumption of discrimination. If the Complainant fails to do so. he or she cannot succeed.2) If the primary facts relied upon are proved, it is for the Adjudication Officer/Court to evaluate those facts and consider if they are of sufficient significance to raise a presumption of discrimination.
3) If the facts proven are considered of sufficient significance to raise a presumption of discrimination the onus of proving that there was no infringement of the principle of equal treatment passes to the Respondent,(Mitchell v Southern Health Board [2001] ELR 201)
In this case the Complainant made a number of assertions in respect of her claims which she wished to rely on as facts. The Complainant was unable to meet the criteria set out in the first leg of the “Mitchell” test i.e. to prove the primary facts upon which she was relying therefore her case must fail. In those circumstances the Court is not required to address the issue of the cognisable period.
The Adjudication Officers decision is upheld and the appeal fails.
The Court so determines.
Signed on behalf of the Labour Court
Louise O'Donnell
20 April 2018______________________
MNDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Michael Neville, Court Secretary.