ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00027767
Thermal Insulation Distributors Ltd
Human Resources Executive
Complaint/Dispute 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: 11/11/2020
Workplace Relations Commission Adjudication Officer: Brian Dalton
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.
After the hearing concluded and both parties had been given an opportunity to present evidence relevant to the complaint, the complainant subsequently sent in a new statement about his complaint on the 12th November 2020. The basis for this he states relates to the fact that his first language is not English, and he was taken by surprise at the hearing when the company’s representative changed her account that he had received payment under the sick plan in January 2020 when in fact he hadn’t received payment. The respondent stated that nothing turned on this amendment, she had changed her submission before the actual hearing which had been forwarded to the complainant in advance. The error arose because the complainant submitted a claim for payment relating to sick absence in November 2019 and payroll had in error informed her that it was paid in January 2020 when in fact it was paid in November 2019. The point being made was the complainant had just recently received the benefit of the scheme.
The complainant requested that he be assisted at the hearing by an Interpreter and this assistance was provided at the hearing. I am satisfied that the complainant was informed by email on the 7th of November 2020 of the amendment regarding the date of payment. At the hearing extensive time was given to this point and about the significance of whether payment was made in November 2019 or January 2020 with the assistance of the interpreter. Both parties were provided with an opportunity to cross examine one another and to make final submissions. Both parties at the end of the hearing were asked had they any further final evidence or remarks to make. Both parties stated they had no further evidence to give and both also stated that they were satisfied that their respective cases were fully heard.
At the hearing a party may be requested to provide additional information. However, in this case it was very clear that the hearing had ended. The Adjudication process provides an accessible forum to adjudicate on employment rights. While it may be accessible it must adhere to fair procedures and in that regard, I am satisfied that the complainant was not taken by surprise, was on notice prior to the hearing of the correct date of payment based on the amendment of the original submission and in any event this matter was adequately and comprehensively dealt with at the hearing with the able assistance of the Interpreter.
It is not appropriate for me to consider new submissions post the hearing. I determine that the complainant was not procedurally disadvantaged by the change to correct an error relating to the date of payment to November 2019 from January 2020. Any disadvantage in presenting his case and understanding what the respondent was saying was adequately provided for with Interpreter assistance and fully availed of. Both the complainant and respondent at the end of the hearing stated that the key matters and evidence they wished to be noted by the Adjudicator were fully heard and understood by him, based on the summary given at the end of the hearing by the Adjudicator and both parties confirmed that it accurately reflected their positions. That confirmation that it was an accurate reflection of their respective positions in turn was based on the Interpreter assisting the complainant and explaining in detail what had been said. For these reasons the new submissions received after the hearing concluded on the 11th of November 2020 have not been considered as part of my investigation into the complaint as the hearing of evidence had concluded.
The complainant commenced employment in August 2014 and is employed as a General Operative. He works a 39-hour week. The complaint relates to a company sick pay scheme. It is alleged that the terms of the sick pay plan have been applied less favourably to him, a Polish National, when compared to Irish Nationals also employed at the company, who have been treated more favourably and paid under the said plan. The Company employs 55 staff.
Summary of Complainant’s Case:
The company has a sick leave policy, which states if an employee is not present at work and has a doctor’s certificate, the manager at his discretion can decide to pay for the first two days of absence. On about the end March 2020 the complainant was sick and went to his doctor for a sick certificate. Even though he met all the conditions to be paid for the first two days his application for payment was refused. In contrast two Irish Nationals around the same time were paid based on very similar conditions that pertained to the complainant. He believes that this less favourable treatment is a pattern. In 2016 his application for sick pay also was denied. At that time, he was sick because of an occupational injury and was advised to go to a doctor and get a medical certificate so he could be paid. Subsequently he was told as the accident was his own fault he wasn’t entitled to payment under the scheme. The complainant maintains that the practice is to pay once the conditions are met relating to obtaining a medical certificate.
Summary of Respondent’s Case:
The respondent takes issue with the alleged incident that occurred in 2016 concerning an occupational injury. It is out of time as a matter to be considered under the Equality Act and can’t form part of this investigation. In any case the company is not aware of this grievance and has a difficulty to respond to an event that it has no record of. The company operates a discretionary sick pay scheme providing payment for 2 days. The discretion to pay is not up to an individual manager but is always referred to the CEO (Chief Executive Officer) and CFO (Chief Finance Officer) for a decision to ensure consistency. Where they are unsure they refer the matter to the HR executive for a decision. In this case the matter was referred to the HR executive and in turn recommended that payment should not be made for the following reasons:
· In 2019 the complainant went out sick and was absent from 17/09/2019 and returned on 11/11/2019
· He went out sick again and was absent from 22/11/2019 and returned on 02/01/2020
· He was paid 2 days sick leave on his return to work in January 2020 (subsequently amended to November 2019) on his return to work for his absence week ending 22/11/2019
· In total the claimant had 66 days absence in 2019.
The company absolutely refutes that other employees have been treated more favourably and the specific allegation that such treatment was underpinned by prohibited conduct to discriminate based on Nationality or the Race ground.
The company provided a table that detailed the payments made to 11 employees under the plan for 2019 and then for 2020 up to the 30th September. This shows that the complainant did receive payment in 2019 when 3 Irish Nationals did not though they were absent due to sickness. All other EU Nationals received a payment under the scheme when absent due to sickness for 2019. The complainant did not receive payment during 2020 and neither did 4 Irish Nationals. On these facts there is no discrimination as alleged.
Findings and Conclusions:
It is clear that the complainant has very strong feelings about perceived unfairness concerning how the discretion is applied regarding sick payment. In essence he believes that Irish Nationals have been treated more favourably and this is denied by the Company. This claim is brought under the Equality Act 1998 as amended. As explained at the hearing the legislation details a requirement for the complainant to make out a prima facie case that raises the presumption of discrimination.
85A. — (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 complainant states that he was told by two Irish Nationals that they had received a discretionary payment, there attendance was similar to his and based on applying the same criteria applied to them he should also be paid.
Jurisprudence has clarified that the significance of the facts are important in order to determine if the complainant has met the test as detailed at section 85A. The Labour Court in Valpeters v Melpury Developments Limited  21 ELR 64 stated:
“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.”
The Court also stated:
“Knowledge of how the complainant's fellow workers were treated is not exclusively or almost exclusively within the knowledge of the respondent. Nor could it be said that it is peculiarly within the range of respondent's capacity of proof. It is also plainly within the knowledge of those other workers. The complainant could have sought to ascertain from those workers if they were treated as sub-contractors or as employees. If necessary, those workers could have been required to attend at the hearing and testify as to how they were treated.
For these reasons the Court cannot accept that the peculiar knowledge principle can avail the complainant so as to relieve him of the obligation to prove the primary facts upon which he relies in accordance with s.85A of the Act.”
No evidence to support the claim other than the complainant’s account has been given at the hearing, no witnesses have been requested to attend at the hearing to corroborate that claim. The complainant relies on an assumption that in any calendar year the slate is wiped clean and once a medical certificate is obtained in that calendar year the sick pay benefit is automatically paid. There are a number of ways to have tested this proposition including specifically requesting that information be provided concerning the administration of the plan and specific questions put to the respondent relating to the criteria applied to make payment or not and data concerning how those criteria in fact had been applied. The employer may or may not have given that information and in turn that could have given rise to a request to the Adjudicator to seek such information on his behalf. This was not the path chosen rather the complainant relied upon two accounts from two colleagues that they were paid under the plan and he was not. He relied on these accounts, and his assumption that at the start of the calendar year the slate is cleared for all employees. He also assumes that sick benefit is paid based on having a clean slate in that calendar year of claim and on submitting medical certificates’ is paid as a standard practice by the company. It is these accounts and assumption that the complainant relies upon as facts to establish a prima facie case of discrimination, as this standard practice was not applied to him. At the start of the year he had a clean slate like his 2 Irish colleagues, however his claim for benefit was turned down.
The complainant’s evidence has not established that a standard company practice exists where the slate is wiped clear at the start of the year and that the 2 Irish Nationals were paid under the plan on this basis even though their attendance records were similar to his. There are significant consequences that arise from establishing facts that give rise to an inference of discrimination requiring the respondent to rebut that inference. There are alternative possible reasons why 2 Irish Nationals received payment under the scheme other than on the race ground such as a better attendance record, no previous claims, compassionate grounds. Therefore, to establish a presumption of discrimination the facts relied upon at face value must appear to be significant and discriminatory. If two colleagues say they were paid under an employment benefit scheme and another wasn’t, and that other person was older, younger, of different nationality, of different sexual orientation while it may raise suspicions of discrimination in the mind of the employee, further investigations would generally be required to build on that fact of non- payment to show that a prima facie case has been established that gives rise to an inference or a presumption of discrimination. While I can appreciate the depth of feeling regarding a perception that a scheme is unfair, the statutory requirement is clear, and that requirement has not been met based on the facts presented at the hearing. I determine that they don’t meet the required standard of significance that in turn would require the respondent to rebut an inference or presumption of discrimination.
On the facts as presented I determine that they are not of sufficient significance to establish a prima facie case that gives rise to a presumption of discrimination on the ground of race. Therefore, I determine that the complainant was not discriminated against on the ground of race.
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.
No evidence other than the complainant’s account has been given at the hearing, no witnesses have been requested to attend at the hearing. There are alternative possible reasons why 2 Irish Nationals received payment under the scheme other than on the race ground such as a better attendance record. While I can appreciate the depth of feeling regarding a perception that a scheme is unfair, the statutory requirement is clear, and that requirement has not been met based on the facts presented at the hearing. I determine that they don’t meet the required standard of significance that in turn would require the respondent to rebut an inference or presumption of discrimination.
On the facts as presented I determine that they are not of sufficient significance to establish a prima facie case that gives rise to a presumption of discrimination on the ground of race that require the respondent to rebut such an inference or presumption of discrimination. Therefore, I determine that the complainant was not discriminated against on the ground of race.
Workplace Relations Commission Adjudication Officer: Brian Dalton
Race discrimination-Terms of Employment