EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E2018-019
(represented by Tom Smyth & Associates)
File Reference: ET-152922-EE-15
Date of Issue: 10th OCTOBER 2018
HEADNOTES: Equality, Race, sexual harassment, conditions of employment, harassment, victimisation
- The Complainant referred complaints under the Employment Equality Acts (hereinafter also referred to as ‘the Acts’) to the Director of the Equality Tribunal on 22nd January 2015. A complaint regarding dismissal was submitted on 11th March 2016.
- In accordance with powers under section 75 of the Employment Equality Acts, the Director General delegated the case on 5th December 2016 to me, Louise Boyle, an Adjudication Officer/Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions under Part VII of the Employment Equality Acts. This is the date I commenced my investigation. A written submission was received from the Complainant. As required by section 79(1) of the Acts and, as part of my investigation I proceeded to hearing on 15th September 2017 and March 7th, 2018.
- I have made the decision to anonymise this decision owing to sensitivities with the case.
- On 6th March 2018, the complainant’s representative advised that he had been notified by the complainant that the complainant would not be attending the second day allocated for the hearing (for 7th March 2018). The representative came off record and the hearing proceeded on the 7th March 2018 without the presence of the complainant or the complainant’s representative.
- A Polish interpreter was in attendance to assist the complainant.
- This decision is issued by me following the establishment of the Workplace Relations Commission on 1 October 2015, as an Adjudication Officer who was an Equality Officer prior to 1 October 2015, in accordance with section 83(3) of the Workplace Relations Act 2015.
2.0 Summary of the Complainant’s case
- The Complainant alleged he was discriminated against, by the respondent, on the grounds of race and sexual orientation in relation to his conditions of employment, dismissal, harassment, sexual harassment and victimisation contrary to section 8 of the Acts. A claim regarding disability was withdrawn.
- The Complainant is a Polish national and worked on the farm as a labourer from 3rd December 2012 until his employment was termination around 31st December 2015.
- The complainant alleges that on 18th December 2014 he was discriminated against by a fellow employee Mr A, who said publicly that the complainant was “a gay boy” or that he may have said that he was “fucking gay”’. This was not the first occasion that he had been berated by Mr A and laughed at.
- Evidence from Mr C, a former colleague of the complainant was that he was present when Mr A made the comment and he noted that the complainant seemed upset by it.
- The complainant brought the matter to the attention of the manager Mr B but the complainant did not wish to put it in writing as he has limited English and cannot write in English.
- The complainant referred complaints, to the equality tribunal on 22nd January 2015 while remaining working with the respondent.
- In March 2015, the complainant went out sick and was certified by his doctor and provided details of his medical report which detailed that he “presented himself quite distressed due to bullying at the workplace”. He was deemed fit to return to work on 5th May 2015.
- He detailed that he had many timekeeping issues for which he was disciplined for but detailed that he was late for work because other employees would not give him a lift to work.
- His did not turn up to the numerous disciplinary investigations which had been scheduled in relation to his timekeeping and his employment was terminated.
3. Summary of the respondent’s case
3.1 The respondent rejects the claim of discrimination on the basis of race and sexual orientation.
3.2 It was detailed by the respondent that they are unware of the sexual orientation of their employees nor is it any concern to them. It was refuted that the complainant had been discriminated against on the grounds of sexual orientation.
3.3 It was also detailed that they employ many employees of various nationalities and race, including Polish workers, at different levels in the organisation and it was refuted that they discriminated against the complainant on the grounds of his race.
3.4 It was detailed that when Mr B, the manager, became aware of the alleged incident in December 2015, it was investigated but it was denied by Mr A, the supervisor, and the complainant would not put it in writing. Mr A was moved to another site in July 2015 and is no longer an employee with the respondent.
3.5 In March 2015 the complainant went on sick leave and was deemed fit to return to work in May 2015.
3.6 The respondent wrote to him on 29th May 2015 advising that if he had any issues with work that he could raise them with the respondent but he did not do so.
3.7 A letter was issued to the complainant on 28th September 2015 asking him if everything was ok as there had been many performance issues including poor timekeeping and the respondent wanted to see if there was anything bothering the complainant. He was encouraged in this letter to come and talk to Mr B if he had any concerns.
3.8 On 17th December 2015 he was written to regarding his timekeeping and invited to a disciplinary meeting in relation to same which he did not attend nor did he attend further meetings scheduled in relation to this and his employment was terminated on 31st December 2018.
3.9 Evidence from Mr B was that efforts to investigate the incident were thwarted by the complainant’s refusal to put details of the incident in writing. It was accepted that had been no policy in place regarding bullying and harassment but that there is one in place now. It was his evidence that there was support available to the complainant from other Polish workers if he had a difficulty putting his complaint in writing but that he never raised this as an issue and he had completed his bank details when he commenced employment without raising difficulties with writing in English. It was also detailed that there had been a conflict in his evidence regarding what Mr A had said allegedly said to the complainant.
3.10 With regards to the evidence of Mr C, it was detailed that Mr C has taken two claims against the company and therefore his evidence could not be relied upon.
4.1 Section 79(6) of the Employment Equality Act, 1998 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Section 82 of the Act. In reaching my decisions, I have taken into consideration all of the submissions, oral and written, made to me by the parties as well as the evidence given by the witnesses at the hearing and correspondence submitted by both parties.
4.2 It should be noted that during the first day of the hearing, the complainant used his phone on numerous occasions during the hearing, and when asked to desist, he advised that he did not really care if the case proceeded or not. Following a short adjournment and upon consultation with his representative, he advised that he wished to proceed.
4.3 The complainant did not attend the second day of the hearing and his representative came off record. As the complainant had advanced some of his claims of discrimination on the first day, it was necessary to hear from the respondent and there was no basis for concluding that the case should fail for want of prosecution.
4.4 Discrimination under Section 6 of the Act shall be taken to occur where —
1 “( 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 — (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 of paragraph (a) , constitute discrimination.
(2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this complaint are
( d) that they are of different sexual orientation (in this Act referred to as “ the sexual orientation 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”)”
4.5 Section 85A of the Employment Equality Act sets out the burden of proof that applies to complaints of discrimination. In the first instance, it requires the Complainant to establish facts upon which they can rely in asserting that they were discriminated against. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised. Addressing the issue of the burden of proof in EDA0917  21 E.L.R, Arturs Valpeters v Melbury Developments Ltd, the Labour Court, whilst examining the circumstances in which the probative burden of proof operates, held as follows:-
"Section 85A of the Acts 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.”
4.6In his complaint, the Complainant raised that he was discriminated and harassed on the basis of his race (Polish) and his sexual orientation; with regards to his conditions of employment, his dismissal and that he was victimised.
4.7 In Graham Anthony and Co Ltd v Mary Margetts, EDA 038, in an age discrimination case, the Labour Court remarked:
“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 occurred”.
4.8 Discrimination – Race
It was alleged that the Complainant’s conditions of employment were different to others owing to his race, that he was harassed because of his race, that he was dismissed because of his race. Included by way of examples were that he was shouted at and that he was excluded by employees and laughed at and that he was victimised because of his submission of a claim to the WRC.
4.9 I note that there are many non-Irish workers, including Polish workers employed by the respondent. I note also that despite the complainant’s representative making reference to discrimination on the basis of sexual orientation during the complainant’s employment, there were no complaints of discrimination on the basis of race during his employment.
4.10 It was accepted by the complainant that he had time-keeping issues and that he failed to attend the scheduled disciplinary meetings regarding same
4.11 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 and I find that the Complainant has made numerous assertions that do not meet the level required to raise a presumption of discrimination and upon which an inference of discrimination can be drawn. I find, therefore, that he is unable to establish a prima facie case of discrimination on the grounds of race in relation to conditions of employment, harassment, victimisation or dismissal.
4.12 Discrimination – Sexual Orientation
It was alleged that the Complainant’s conditions of employment were different to others owing to his sexual orientation, that he was harassed because of his sexual orientation, that he was sexually harassed, that he was dismissed because of his sexual orientation, that he was victimised because of his submission of a claim to the WRC. Included by way of examples were that he was shouted at and that he was excluded by employees and that Mr A called him names.
4.13 It was detailed that reference had been made to the complainant’s sexual orientation by Mr A and I note the evidence of Mr C in this regard. I also note that Mr C had brought two claims against the respondent in relation to his own work issues.
4.14 There was conflict in the complainant’s own evidence as to what derogatory names Mr A had called him.
4.15 The complainant details that he was not in a position to put in writing his allegations to the respondent owing to his poor English but I note that he was in a position to submit his claims to the equality authority a few months later through his representative and had sufficient English to complete his bank details form when he commenced employment.
4.16 While it is not always necessary that such claims are put in writing, I am satisfied that the respondent did ask the complainant on a number of occasions about his wellbeing and gave him an opportunity to pursue complaints he may have had.
4.17 I also note that Mr A left the site where the complainant worked in July 2015, 5 months before his claim that he was unfairly dismissed and that the complainant accepted that there were issues with his timekeeping.
4.18 I find that the Complainant has made numerous assertions that do not meet the level required to raise a presumption of discrimination and upon which an inference of discrimination can be drawn. I find, therefore, that he is unable to establish a prima facie case of discrimination on the grounds of sexual orientation in relation to conditions of employment, harassment, sexual harassment, victimisation or dismissal.
5.1 I have investigated the above complaints and make the following decision in accordance with section 79 of the Employment Equality Acts that:
5.2 The Complainant has failed to establish a prima facie case of discrimination on the race ground in relation to his complaints and I dismiss the complaints.
5.3 The Complainant has failed to establish a prima facie case of discrimination on the sexual orientation ground in relation to his complaints and I dismiss the complaints.
Adjudication Officer / Equality Officer