Complainant

Respondent

Parties

Artur  Czopek

TJX Ireland Unlimited Company

Representatives

Self-represented

Tiernan Lowey BL, instructed by Hayes Solicitors LLP

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00068504-001

08/01/2025

The Complainant is employed as a sales associate since 2017, working 20 hours per week.  He contends he was discriminated against, harassed and victimised on grounds of his race.  The Respondent refutes the complaints entirely and submits that the Complainant has not discharged the burden on him to establish a prima facie case of discrimination, harassment or victimisation, and the Complainant’s complaints constitute a local work grievance which was comprehensively addressed by the Respondent.

The Complainant submitted he was discriminated and harassed mainly by the assistant manager Ms Allen, and that his complaints to management were completely ignored.  The Complainant contends that he suffered adverse treatment because he made a complaint.  He submitted that this behaviour commenced in May 2024 when Mr Cooper took over as Store Manager.  The Complainant told the hearing that Ms Allen commenced a practice within the store of setting up voluntary WhatsApp groups for the purposes of collecting contributions towards gifts to celebrate fellow employee birthdays or significant events.  The Complainant contributed to the collections.  However, Ms Allen determined which employees were selected to receive a gift.  She always selected Irish employees, and at no time was a non-Irish national the beneficiary of a collection.  The Complainant was never selected for a gift on his birthday despite being in the employment of the company for 8 years and this was because he was “a foreigner”.  The Complainant submitted “my perception is that she has a certain dislike for foreigners.  I never saw a foreigner get flowers or presents and that is why I felt discriminated”.  The Complainant named three Irish persons (“SF”, “PM” and “CK”) who he saw receiving gifts.  In response to a question from the Adjudication Officer the Complainant stated that it was SF’s 40th birthday; PM’s 65th birthday; and CK 18th birthday.  He complained to Mr Cooper about this.   Mr Cooper responded that he too was not in favour of management being involved in this practice and that it would cease, but the practice continued.  The following day after the Complainant complained to Mr Cooper, Ms Allen added the Complainant to another WhatsApp group for the purpose of a collection for Ms S and then deliberately removed him from the group hours later just to ridicule him and make him “the butt of the joke”.  The Complainant estimates that 70% of his colleagues are Irish and 30% are non-Irish nationals.  Since May 2024 “no foreigners are being employed at the store”. 

The Complainant was unhappy with this practice as he felt it was discriminatory on grounds of race, and he complained to Mr Cooper about the practice in July or August 2024.  As a result of his complaint, the Complainant contends that he suffered adverse treatment as follows: (i) his usual Sunday shift hours were cut whereas no other employee working on Sundays had their Sunday working hours cut; (ii) he was given “unusual extra work like never before”; and (iii) when he requested authorisation for a bathroom break, it was now taking longer to get approval from the team leader, Ms Allen or Mr Cooper than had previously been the case.

The Complainant complained to Mr Cooper about his Sunday hours being cut, and as a result his full Sunday hours were restored.  However, on Sundays he was now being assigned “unusual extra work and my perception of this was that it was as a result of having complained and my workload increased and nothing similar had taken place in previous years”.  The Complainant outlined that he was asked to clean the make-up stand. 

The Complainant stated he was harassed because he was contacted by his manager while absent from work and because he was required to speak with his manager every week even though the medical certificate covered him for 4 weeks at a time.   In response to a question from the Adjudication Officer, the Complainant outlined “it is hard to answer why he [Mr Cooper] was doing that, but I think it was because of my nationality”.  Mr Cooper agreed to fortnightly contact when the Complainant complained about the requirement to make weekly contact. 

The Complainant submitted that the last discriminatory act was on 21st November 2024.  He was required to attend an absence review meeting with Mr Cooper.  During the meeting Mr Cooper deliberately dropped a pen on the floor and as the Complainant leaned down to pick it up, Mr Cooper said to him that his back must not be that bad.  The Complainant submitted that the reason Mr Cooper did this was to test if the Complainant’s back injury was as bad as he was claiming.  In response to a question from the Adjudication Officer the Complainant submitted that the foregoing was happening because he had made a complaint about the collection practice being unfair and discriminatory, and that since July 2024 he was being harassed “at every opportunity”.  The Complainant submitted “that’s all the evidence and I still feel very bad, and I feel severe stress.  Despite living in Ireland for 20 years I never anticipated such treatment would take place in relation to my person.  I have nothing against the company specifically but Ms Allen and Mr Cooper.  My perception of the conduct of these persons is racist behaviour”.

In cross-examination, the Complainant accepted that he had signed a contract of employment which provided for variation in working hours, a grievance procedure and a code of conduct.  The Complainant added that while he accepted those were contractual provisions, the reality was that he always got to work a full Sunday.  It was put to the Complainant that there was never a formal agreement with Mr Cooper’s predecessor (“Mr P”) that he was guaranteed full hours on a Sunday, but that this would be accommodated where possible.   The Complainant responded that he was accommodated for two years under Mr P in relation to full hours on Sundays.  It was put to the Complainant that at no stage in any of his complaints to Mr Cooper did he ever mention that he was being discriminated against.  The Complainant responded: “I don’t think I referred to discrimination”.  The Complainant confirmed that he had received training on the Employee Code of Conduct and the Grievance policy, and Bullying and Harassment policy, and that he had received and had access to the company handbook containing these policies.  The Complainant submitted “I participated in this training, but my English probably wasn’t sufficient”.  The Complainant confirmed that he did not raise this at the time and added that he “reported the harassment to my manager and it was ignored”.  A previous grievance complaint dating to 2018 was opened by counsel for the Respondent.  The Complainant responded, “that is nothing to do with my complaint to the WRC today”.  Counsel put it to the Complainant that it shows that the Complainant was familiar with the grievance procedure and knew the process for raising a formal grievance.  The Complainant again confirmed that he never raised a complaint of discrimination prior to making his complaint to the WRC. 

Counsel for the Respondent opened a record of the meeting between Mr Cooper and the Complainant dated 28th August 2024.  It was put to the Complainant that the first time he raised the issue of the collection practice was that date.  It was put to the Complainant that he never raised an issue of race discrimination in relation to the collection practice at this meeting.  The Complainant responded: “no, but I didn’t feel comfortable that they were singling the Irish out”.  Counsel put it to the Complainant that the first time the Complainant had mentioned that the collection practice was discriminatory was in his evidence at the adjudication hearing and that at no time had he ever complained of race discrimination to Mr Cooper or had he described the collection practice as discriminatory on the WRC complaint form.  The Complainant responded: “my perception was that it was unfair”.  It was put to the Complainant that the collection practice was only ever done within the store to mark milestone birthdays or events for all employees.  The Complainant responded, “I turned 40 and nothing happened. No, only selected people were receiving presents”.  It was put to the Complainant that the collection practice only commenced in 2020.  The Complainant agreed.  It was put to the Complainant that he turned 40 in 2019.  The Complainant was asked if he recalled Ms L’s 30th birthday, that she was Latvian and that she was given a present.  The Complainant agreed.  The Complainant was asked if he remembered a collection for Ms A, a Polish national and Mr V, a Russian national.  The Complainant responded: “I don’t deny these”.   It was put to the Complainant that he asked to be removed from the WhatsApp group and that Ms Allen innocently added him in the following day as she had not been in work and did not know that the Complainant had expressly asked Mr Cooper to remove him, and that the only reason Ms Allen then removed him was on the instruction of Mr Cooper.  The Complainant disagreed.  Counsel opened a record of the meeting at which the Complainant asked Mr Cooper to remove him from the group.  The Complainant responded, “I remember yes”.  The Complainant added that when he turned 45 years of age that was not recognised by way of a collection or gift.

Counsel for the Respondent opened the record of the meeting in May 2024 between Mr Cooper and the Complainant during which the Complainant complained about his Sunday hours being cut.  It was put to the Complainant that this meeting pre-dated the meeting at which the Complainant made a complaint about the collection practice.  The Complainant was asked if he accepted that he was told he would be facilitated in relation to his request to work full Sundays but only where this could be accommodated.  The Complainant responded “yes, but why was it only me who had my Sunday hours cut?”.  It was put to the Complainant that all employees working Sundays were affected in the same way as the Complainant and that it would be the evidence of the Respondent that two other employees had been similarly affected.  The Complainant disagreed.  It was put to the Complainant that Mr Cooper’s evidence would be that non-nationals continue to be recruited at the store.  The Complainant responded: “I didn’t say  no non-nationals are being recruited but since Mr Cooper took over less non-nationals are employed”.

The Complainant accepted that during Mr P’s time he occasionally worked shorter Sundays.  The Complainant was asked did this result in a complaint of discrimination against Mr P, to which the Complainant responded, “no, he sorted things out”.  Counsel put dates to the Complainant before and after Mr Cooper joined the store on which the Complainant worked fewer hours on a Sunday.  The Complainant responded: “this was because of my family commitments”.   

Counsel opened the Respondent “Supporting Absence ROI” policy.  The Complainant accepted that the policy applied to all employees, but he couldn’t say whether other staff were being asked to contact their manager every week.  Counsel named two company employees, one of whom was Polish, who was similarly treated while absent.  The Complainant responded, “I can’t comment on other people’s cases”.  It was put to the Complainant that when he made a complaint regarding weekly contact the Respondent agreed to a fortnightly arrangement.  The Complainant agreed.  Counsel outlined that it would be Mr Cooper’s evidence that the incident regarding the pen did not happen as described by the Complainant.  An alternative version was put to the Complainant.  The Complainant responded, “I refute that”.

In response to a question from the Adjudication Officer, the Complainant confirmed that two other non-Irish nationals and an Irish national also worked Sundays.  These persons included Ms L and another Ms L. 

Closing Submission

In closing the Complainant submitted: “I am sorry that the matters had to go so far, and as a foreigner that I had to experience such behaviour. I never experienced such treatment in 46 years. I wish management would be more considerate”.

Oral Testimony of Ms Allen (under Oath)

Ms Allen worked as an assistant manager at the Newbridge store until 2024 having worked for the Respondent since 2018. The witness took the hearing through the various training programmes she completed on the Code of Conduct and Dignity at Work policies.  The material covered in those training programmes was opened to the hearing.  The witness outlined that she was required to undergo refresher training at regular intervals and as recent as October 2023.  A certificate of completion was opened to the hearing. 

The witness told the hearing that in 2018 the Complainant raised a grievance and that this matter had been resolved to the satisfaction of the Complainant at the time and the Complainant did not appeal the outcome.

When the Complainant complained about his Sunday hours in May 2024 the witness spoke with Mr P who confirmed that there was no agreement in place that the Complainant would be guaranteed full hours on a Sunday.  Rather the arrangement was that this would be facilitated where possible.  A document was opened to the hearing showing dates before and after Mr Cooper joined the store which showed that the Complainant worked shorter hours on several Sundays.  Full hours on a Sunday could not be guaranteed to any staff member as it depended on staff badges and the requirement for sufficient cover mid-week.  

The witness outlined that when Mr Cooper joined the store a full review was done on store operations to improve and maximise efficiencies and productivity.  The witness sat with Ms L to discuss her availability and as a result her working hours, including those on a Sunday, were amended.  Mr Cooper met with the other Ms L to discuss her hours and Sunday working.  The witness described the Respondent’s scheduling system which automatically generates work rosters.  Management input metrics including staff availability; staff badges (a badge is work an employee is trained to do for example, hold keys, tills, changing rooms etc);  busy periods; product flow etc.  An employee’s race is not a metric.  The witness gave evidence of the composition of the workforce in terms of the diversity of nationalities employed at the store.     

The witness submitted that the collections practice commenced in 2020.  The purpose of it was to collect money from any staff member in the store who wished to contribute some money towards a gift to mark milestone birthdays and events only such as turning 18, 21, 30, 40, 50, 60, 65 or on 10 years’ service etc. The witness set up these WhatsApp groups for the collections.  Counsel opened a document to the hearing and evidence was given of the first occasion marked in 2020 of Mr AH’s 50th birthday.  Evidence was also given that of two non-Irish nationals, namely Ms L and Ms A, who received gifts on their 30th and 40th birthdays respectively.  The witness submitted that a 45th birthday would not be regarded as a milestone event but that a 65th birthday would be given the association of that age with retirement.  The Complainant said he always contributed to the collections but that was not the case.  The Complainant never objected to being added to the group and never complained to the witness that he thought the collection practice was discriminatory. 

The Complainant submitted that she was not in work when the Complainant complained to Mr Cooper about the collection practice and requested to be removed.  The witness set up a WhatsApp group for Ms S’s 21st birthday.  She added the Complainant as normal.  She was only informed later that day by Mr Cooper that the Complainant did not want to participate in collections and so she removed him from the group.  In agreement with Mr Cooper, the witness decided that it was best if management had no further involvement in the collection practice.  The witness asked associates if they wanted to continue the practice, and Ms M, an associate, agreed to take it over.  No member of management are now involved in the collections.

The witness outlined that the Complainant only has a badge for the fitting rooms.  This work involves assisting customers and tagging.  The witness submitted that the make-up table may have been wheeled down to the fitting rooms and the Complainant may have been asked to clean it.  This is a requirement of all staff and as provided for within the Complainant’s contract, he may be required to do different tasks from time to time in the same way as any other member of staff. 

The witness submitted that she never received a complaint from any member of staff that they were prevented from taking a toilet break.  In 2018 there was a complaint that the Complainant was taking too many toilet breaks but the Complainant explained there was an underlying medical issue, so it was not a problem.

The witness submitted that when an employee is absent from work management agree the frequency of contact with them.  Mr D and Ms A are also on long term sick leave, and they are also contacted throughout their absence in the same way as the Complainant is and in accordance with the absence management policy.         

In cross examination, the Complainant asked the witness what the waiting time for a toilet break was in 2018 compared to 2024.  The witness responded that she could not answer that question, but that when a staff member requests to leave the floor it is facilitated as soon as possible.  The witness was asked why she did not celebrate the Complainant’s 45th birthday.  The witness responded that the team decide which milestone birthdays are celebrated and that a 45th birthday is not seen as a milestone birthday.  In response to a question about the cleaning of the make-up table the witness explained that Saturday is a very busy trading day and if the make-up stand is badly soiled, a member of staff will be asked to clean it when they come in on a Sunday.  The make-up table could also be cleaned other days of the week and by any member of staff.

Oral Testimony of Mr Cooper (under oath)

The witness joined the company in 2009 and joined the Newbridge store in 2024.  The witness took the hearing through the various training programmes he completed on the Code of Conduct and Dignity at Work policies.  The material covered in those training programmes were opened to the hearing.  The witness outlined that he was required to undergo refresher training at regular intervals and as recent as October 2023.  A certificate of completion was opened to the hearing.  The witness submitted that this training was also rolled out to associates, and that all training and policies are available online and must be completed by all staff. 

In May 2024 the witness did a full handover with the outgoing store manager.  He did a full review of store performance and identified various challenges and the most efficient way of running the store.  The Complainant met with two other associates: one an Irish national (Ms L) and the other a Latvian national (Ms L) who worked Sundays and who also wanted full Sunday hours.  Both associates hold numerous badges.  Both were told that they could not always have full Sunday working hours.  The same communication was held with the Complainant.  The Complainant was unhappy as he wanted the choice to work full hours (8 hours) on a Sunday.  The witness submitted that all staff were available to work Sundays, but mid-week availability was a problem.  No associate could be guaranteed full hours on a Sunday for that reason.

Counsel for the Respondent opened a “Let’s Talk: An Informal Conversation” record dated 30th May 2024.  The witness explained that this was a record of an informal conversation between him and the Complainant.  The Complainant was unhappy about not getting full hours on a Sunday.  The witness explained to him that he only held one badge and that impacted on his availability.  It was agreed that where possible the Complainant would be facilitated with full hours on a Sunday but that that may not always be possible.  The witness told the Complainant that the roster would go up 3 weeks in advance and the record noted: “Arthur is happy he will be able to plan”.  The Complainant at no point complained of discrimination. 

Counsel for the Respondent opened a “Let’s Talk: An Informal Conversation” record dated 2nd June 2024.  It recorded that the Complainant was disappointed with his Sunday hours.  The witness submitted that he did not know why the Complainant came back to him within days of the first meeting as he had been told that his request for full hours on a Sunday would be facilitated when possible.   The witness also pointed out to the Complainant that there was not a practice of him working full Sunday hours.  The witness noted on the form 5 dates over 2023 and 2024 when this had not been the case, all of which occurred before the witness joined the store.  The witness again explained to the Complainant that he was not guaranteed full hours on a Sunday and may have to work his contracted hours on other days of the week as had been the practice on other occasions.  The Complainant’s complaint in relation to Sunday hours was made weeks before the complaint in relation to the collections practice.  The Complainant was able to resume full Sunday hours in August until he went on sick leave in October.

The witness told the hearing that the first time the Complainant complained about the collection practice was 28th August 2024.  The Complainant said he didn’t like the practice and did not want to be part of it.  He said he was going to speak to his solicitor before he would raise a grievance.  A new WhatsApp group was created on 29th August 2024.  At this point Ms Allen had not been informed not to include the Complainant.  On 30th August the witness asked Ms Allen to remove the Complainant.

On 21st November 2024 the witness met with the Complainant for a Health Review Meeting.  This is a check-in meeting between managers and employees where an employee is absent, and it is part of the company absence management process.  The purpose of the meeting is to check in with the employee and see if there is anything they need.  The company has a ‘Retail Trust’ which employees can avail of if they are experiencing financial difficulties while absent from work.  The witness was seated behind his desk.  During the meeting a pen fell from the desk and as the Complainant leaned to pick it up, the witness said: “no your OK I’ll get it, mind yourself”.  The witness submitted that he did not say the Complainant’s back was not too bad if he could pick up a pen.   The Complainant told the witness at this meeting that he felt harassed being called every Monday during his absence.  The witness explained that these are check-in calls and the frequency of them can be agreed with the employee.  The witness agreed with the Complainant that the check-in calls would become fortnightly instead.  The witness gave evidence of 3 other employees (two non-nationals and one Irish national) who were similarly contacted while absent and of agreements made to vary the frequency of their calls.  An example was given of a Polish worker who was travelling to Poland for medical treatment and agreement was reached to vary the check-in frequency.

The witness denied that there was any fall off in the recruitment of non-Irish nationals since his appointment and submitted that recruitment across all nationalities continues as normal. 

In cross examination, the witness was asked if the CCTV in the office was video and sound.  The witness responded: “just video”.  It was put to the witness that he said he would stop the collection practice.  The witness agreed that he was not in favour of management being involved in it and that management were no longer involved, and that Ms M, an associate, now manages it amongst associates only.  In response to a question as to why the Complainant was required to make weekly contact, the witness outlined that there are two absence triggers for health reviews, more than 3 absences in a 12-month rolling period and more than 10 days absence in a 12-month rolling period.  As the Complainant had reached both, the absence management policy provisions were engaged.  The witness submitted that he specifically explained the policy to the Complainant as he was struggling to understand why he was the subject of a health review meeting and the requirement to make regular contact.  

Closing Submission     

Mr Lowey outlined that the Respondent is relying on the oral evidence given on behalf of the Respondent and the written submission furnished to the WRC in advance of the hearing.  The hearing was directed to the case law outlined therein.  Mr Lowey submitted that the Complainant’s complaint lacked specificity in the complaint form.  No further written submission was presented to the WRC and the precise nature and scope of the Complainant’s claim was unclear prior to the hearing.  It was therefore challenging for the Respondent to meet the complaint, and many elements of the complaint were only ventilated at the hearing for the first time.  Mr Lowry submitted that the Complainant had failed to establish a prima facie case, and his complaint was comprised of nothing more than mere assertions unsupported by evidence.  Taken at its height the complaint was nothing more than a grievance about work practices which had been uniformly applied to all staff.  Mr Lowey outlined that new allegations were presented during the hearing, and while the Respondent did not object to same in principle, he reminded the hearing of the cognisable period and the jurisdiction of the adjudication officer in that regard.  The WRC complaint form was the first time that management had heard that the Complainant felt he had been discriminated against because of his race.  The Complainant well knew the grievance and dignity at work policies and yet did not complain at any time of race discrimination, harassment or victimisation.  At no time was he treated differently because of his race or did he suffer adverse treatment.  The Complainant identified no comparators, and even if he was to rely on a hypothetical comparator, he was treated no differently than any other person of the same or different nationality.  The Complainant’s complaint about his hours on a Sunday pre-date the complaint regarding the collection practice.  The Complainant was required to complete the same tasks as any other employee.  The absence management policy was applied to him in the same way as it was to other employees.  There is no evidence that the Complainant was treated any differently with respect to toilet breaks as any other employee.  Without prejudice to any of the foregoing, the Respondent relies on the defences as provided for at ss 14(A)(2) and 15(3) of the Employment Equality Acts.

Relevant Law

The Employment Equality Acts, 1998-2015 (“the Acts”) promote equality in the workplace and provide protection against discrimination, harassment, and victimisation. The Acts prohibit discrimination on nine grounds, including race. Discrimination occurs when one person is treated less favourably than another is, has been or would be treated, on one of the nine grounds. The employee must demonstrate that they have been treated less favourably than a comparator.

Discrimination & Harassment

Discrimination for the purposes of the Acts is defined at s 6 as:

“(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 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 Act) are . . . (h) that they are of different race, colour, nationality or ethnic or national origins (in this Act referred to as “the ground of race”) . . . . ”

Section 8(1)(b) of the Acts prohibits discrimination in relation to conditions of employment and s 8(4)(b) provides that an employer must not operate a practice which results or would be likely to result in discrimination.

The Acts defines harassment as unwanted conduct which is related to any of the nine discriminatory grounds.

Section 14A of the Acts provides:

“(1) For the purposes of this Act, where— (a) an employee (in this section referred to as "the victim") is harassed or sexually harassed either at a place where the employee is employed (in this section referred to as "the workplace") or otherwise in the course of his or her employment by a person who is—

(i)                  employed at that place or by the same employer,

(ii)                the victim’s employer, or

(iii)               a client, customer or other business contact of the victim’s employer and the circumstances of the harassment are such that the employer ought reasonably to have taken steps to prevent it, or

(b) without prejudice to the generality of paragraph (a)—

(i) such harassment has occurred, and (ii) either— (I) the victim is treated differently in the workplace or otherwise in the course of his or her employment by reason of rejecting or accepting the harassment, or (II) it could reasonably be anticipated that he or she would be so treated, the harassment or sexual harassment constitutes discrimination by the victim’s employer in relation to the victim’s conditions of employment.

(2) If harassment or sexual harassment of the victim by a person other than his or her employer would, but for this subsection, be regarded as discrimination by the employer under subsection (1), it is a defence for the employer to prove that the employer took such steps as are reasonably practicable—

(a) in a case where subsection (1)(a) applies (whether or not subsection (1)(b) also applies), to prevent the person from harassing or sexually harassing the victim or any class of persons which includes the victim, and

(b) in a case where subsection (1)(b) applies, to prevent the victim from being treated differently in the workplace or otherwise in the course of the victim’s employment and, if and so far as any such treatment has occurred, to reverse its effects.

(3) A person’s rejection of, or submission to, harassment or sexual harassment may not be used by an employer as a basis for a decision affecting that person. (4) The reference in subsection (1)(a)(iii) to a client, customer or other business contact of the victim’s employer includes a reference to any other person with whom the employer might reasonably expect the victim to come into contact in the workplace or otherwise in the course of his or her employment. . .

(7) (a) In this section— (i) references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds, and (ii) references to sexual harassment are to any form of unwanted verbal, non-verbal or physical conduct of a sexual nature, being conduct which in either case has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.

(b) Without prejudice to the generality of paragraph (a), such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material.

Vicarious Liability

Section 15 of the Acts provides:

“(1) Anything done by a person in the course of his or her employment shall, in any proceedings brought under this Act, be treated for the purposes of this Act as done also by that person’s employer, whether or not it was done with the employer’s knowledge or approval.

(2) Anything done by a person as agent for another person, with the authority (whether express or implied and whether precedent or subsequent) of that other person shall, in any proceedings brought under this Act, be treated for the purposes of this Act as done also by that other person.

(3) In proceedings brought under this Act against an employer in respect of an act alleged to have been done by an employee of the employer, it shall be a defence for the employer to prove that the employer took such steps as were reasonably practicable to prevent the employee— (a) from doing that act, or (b) from doing in the course of his or her employment acts of that description.”

Comparators

Section 28 provides for comparators:

“(1) For the purpose of this Part, “C” and “D” represent 2 persons who differ as follows . . .  (g) in relation to the ground of race, C and D differ as to race, colour, nationality or ethnic or national origins or any combination of those factors . . . .”

Victimisation

Section 74(2) of the Acts defines victimisation for the purposes of the Acts as follows:

“(2) For the purposes of this Part victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to— (a) a complaint of discrimination made by the employee to the employer, (b) any proceedings by a complainant, (c) an employee having represented or otherwise supported a complainant, (d) the work of an employee having been compared with that of another employee for any of the purposes of this Act or any enactment repealed by this Act, (e) an employee having been a witness in any proceedings under this Act or the Equal Status Act 2000 or any such repealed enactment, (f) an employee having opposed by lawful means an act which is unlawful under this Act or the said Act of 2000 or which was unlawful under any such repealed enactment, or (g) an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs.”

A claim of victimisation must be assessed independently of the allegation of discriminatory treatment.  An employee alleging victimisation is required to establish the primary facts from which it can be inferred that the employer has victimised the employee and that these facts are of a sufficient weight to raise a presumption of discrimination for them to meet the burden of proof required of them and for the burden of proof to shift to the employer.

The act or acts which result in victimisation must be connected to a reliance on rights under the Employment Equality Acts, 1998-2015. In Moriarty v. Dúchas (DEC-E2003-013) the Equality Officer outlined that it “is necessary that a complainant demonstrate the connection between his or her actions in relation to defending entitlements under the Act and the treatment complained of”.

In Department of Defence v. Barrett (EDA1017), the Labour Court held that the definition of victimisation at s 74(2) contains three ingredients. It requires that:

“1. The Complainant had taken action of a type referred to at s.74(2) of the Acts (a protected act),

2. The Complainant was subjected to adverse treatment by the Respondent, and,

3. The adverse treatment was in reaction to the protected action having been taken by the Complainant.”

As noted above what constitutes a protected act is defined at s 74(2) paragraphs (a) to (g) inclusive, as follows:

“For the purposes of this Part victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to—

(a) a complaint of discrimination made by the employee to the employer,

(b) any proceedings by a complainant,

(c) an employee having represented or otherwise supported a complainant,

(d) the work of an employee having been compared with that of another employee for any of the purposes of this Act or any enactment repealed by this Act,

(e) an employee having been a witness in any proceedings under this Act or the Equal Status Act 2000 or any such repealed enactment,

(f) an employee having opposed by lawful means an act which is unlawful under this Act or the said Act of 2000 or which was unlawful under any such repealed enactment, or

(g) an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs.”

Separate decisions

Section 79 of the Acts provides:

“(1) Where a case which has been referred to the Director General of the Workplace Relations Commission under section 77 . . . (1A) (a) Claims to have been discriminated against on more than one of the discriminatory grounds shall be investigated as a single case, and (b) claims both to have been discriminated against on one or more than one of such grounds and to have been penalised in circumstances amounting to victimisation may, in an appropriate case, be so investigated, but a decision shall be made on each of the claims”.

Burden of Proof

The burden of proof is provided for at s 85A(1) of the Acts as follows:

“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 is required to establish facts from which discrimination can be inferred. It is only when this burden is discharged does the burden shift to the Respondent to show that no unlawful discrimination took place. The Labour Court in Southern Health Board v. Mitchell [2001] ELR 201 considered the extent of this evidential burden on a complainant and held:

“The first requirement is that the claimant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination. It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there is no infringement of the principle of equal treatment.”

Therefore, a complainant must establish both the primary facts upon which they rely and that those facts are of sufficient significance to raise an inference of discrimination.  In Valpeters v. Melbury Developments [2010] ELR 64, the Labour Court stated that “mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn”.

Time Limits & Continuing Discrimination

Section 77 of the Acts provides:

“(1) A person who claims—

(a) to have been discriminated against or subjected to victimisation,

(b) to have been dismissed in circumstances amounting to discrimination or victimisation,

(c) not to be receiving remuneration in accordance with an equal remuneration term, or

(d) not to be receiving a benefit under an equality clause, in contravention of this Act may, subject to subsections (3) to (9), seek redress by referring the case to the Director General of the Workplace Relations Commission . . .

(5)(a) Subject to paragraph (b), 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 of the discrimination or victimisation to which the case relates or, as the case may be, the date of its most recent occurrence.

(b) On application by a complainant the Director General of the Workplace Relations Commission or Circuit Court, as the case may be, may, for reasonable cause, 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 substituted a reference to such period not exceeding 12 months as is specified in the direction; and, where such a direction is given, this Part shall have effect accordingly. (c) This subsection does not apply in relation to a claim not to be receiving remuneration in accordance with an equal remuneration term . . .

(6A) 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 period,

(ii)                if it arises by virtue of a term in a contract, throughout the duration of the contract, and

(iii)               if it arises by virtue of a provision which operates over a period, throughout the period, (b) a deliberate omission by a person to do something occurs when the person decides not to do it, and (c) a respondent is presumed, unless the contrary is shown, to decide not to do something when the respondent either— (i) does an act inconsistent with doing it, or (ii) the period expires during which the respondent might reasonably have been expected to do it.”

Findings

The Complainant presented a complaint of race discrimination to the WRC on 8th January 2025.  Accordingly, the relevant cognisable period is 9th July 2024 to 8th January 2025.  On the complaint form, the Complainant identified the most recent date of discrimination as 13th October 2024.  At the outset of the hearing the Complainant changed this date to 21st November 2024.    

Discrimination

The Complainant’s case is that the Respondent operated a collections practice that was unfair and discriminatory on grounds of race insofar as management deliberately selected only Irish nationals to be the beneficiaries of same.  The Respondent presented a document to the hearing which shows the beneficiaries of the collection practice as follows:

Mr H (50th birthday); Mr P (30th birthday); Ms L (non-national – 30th birthday); Ms A (non-national – 40th birthday); Ms J (50th birthday); Ms R (50th birthday); Ms G (50th birthday); Mr S (40th birthday); Ms S (40th birthday); Ms C (18th birthday); Ms P (65th birthday); Ms L (non-national – 10 years’ service); Ms A (non-national - 10 years’ service); Mr P (5 years’ service); Ms R (10 years’ service); Mr S (10 years’ service) and Mr S (15 years’ service).  

I am satisfied that the evidence shows that the occasions celebrated are objectively understood as milestone events and the beneficiaries of the collections were of various nationalities, not just Irish employees as claimed by the Complainant.  In cross-examination, the Complainant was asked if he recalled Ms L’s 30th birthday, that she was Latvian, and that she was a beneficiary of the collection practice.  The Complainant agreed.  The Complainant was asked if he remembered a collection for Ms A, a Polish national and Mr V, a Russian national.  The Complainant responded: “I don’t deny these”.  Considering the foregoing, I am not satisfied the Complainant has established facts from which it may be presumed that there has been discrimination on the ground of race in relation to him with respect to the collections practice.  Further, the Complainant claimed that Mr Cooper is deliberately not recruiting non-Irish nationals since his appointment.  I am satisfied this is a mere assertion unsupported by the evidence. 

The Complainant also alleges that he was discriminated against on ground of race as he was harassed by being required to make weekly contact while absent and when Mr Cooper allegedly said to him that his back injury was not so bad during an absence review meeting.  Having reviewed the oral testimony of the parties and the documents opened at the hearing, I am not satisfied that the Complainant has established facts from which discrimination in the form of harassment on the grounds of race can be inferred.  Sworn evidence was given by Mr Cooper that there are currently two other employees at the store, one of whom is an Irish national and the other a Polish national, who are also on long-term sick leave and are also required to make regular contact with the Respondent.  In the absence of any contrary evidence from the Complainant, I accept the evidence given by Mr Cooper that these two employees are required to comply with the absence management policy in the same way as the Complainant.  It was common case that a pen dropped to the floor in the health review meeting attended by the Complainant and Mr Cooper.  It was common case that the employee bent down to pick it up.  The Complainant submits that Mr Cooper said his back must not be too bad.  Mr Cooper refutes this and submits he said to the Complainant not to pick the pen up.  Regardless of which version is the truth, I am not satisfied that the Complainant has established facts from which harassment on grounds of race can be inferred. 

In conclusion, I accept the submission of the Respondent that the Complainant’s complaints are assertions unsupported by evidence.  I find the Complainant has not discharged the burden on him to establish facts from which discrimination may be presumed, and therefore the burden does not shift to the Respondent to show that no unlawful discrimination took place. 

Victimisation

A claim of victimisation must be assessed independently of the allegation of discriminatory treatment.  The Complainant is required to establish the primary facts from which it can be inferred that the Respondent has victimised him and that these facts are of a sufficient weight to raise a presumption of discrimination in order for him to meet the burden of proof required of him and for the burden of proof to shift to the Respondent.

The Complaints contends that when he complained about the collections practice, he was subjected to adverse treatment as follows: 

(i)                  he was deliberately added to a WhatsApp group and removed within hours to ridicule him in front of his colleagues for complaining about the practice;

(ii)                his usual Sunday shift hours were cut whereas no other employee working on Sundays had their Sunday working hours cut;

(iii)               he was given “unusual extra work like never before”; and

(iv)               when he requested authorisation for a bathroom break, it was now taking longer to get approval from the team leader, Ms Allen and or Mr Cooper than had previously been the case. 

I am not satisfied the Complainant has established facts from which victimisation can be inferred.  I am satisfied the Complainant did not complain about the collections practice until August 2024 and that he did not complain about being added and then removed from a WhatsApp group until 10th October 2024.  His concern in relation to his Sunday hours dated back to 30th May 2024 and therefore predates any complaint he made in relation to the collections practice.  The Complainant presented no particulars of the “unusual extra work” he was required to do on or after he complained that the collections practice was unfair, other than being asked to clean the make-up stand.  I do not accept that this equates to ‘unusual extra work’.  I accept the evidence of the Respondent that all employees are required to do this task on occasion and that same is provided for in the Complainant’s contract of employment.  I accept the evidence of the Respondent that Ms Allen did not know the Complainant had asked not to be included on further collections and that she removed him on the instruction of Mr Cooper.  Further, the Complainant presented no evidence whatever that he must wait longer than others to be released for a bathroom break. 

In conclusion,  I find the Complainant has not discharged the burden on him to establish facts from which victimisation may be presumed, and therefore the burden does not shift to the Respondent to show that no victimisation took place. 

I decide the complaint of discrimination under the Employment Equality Acts, 1998-2015 is not well-founded.

I decide the complaint of victimisation under the Employment Equality Acts, 1998-2015 is not well-founded.

Race discrimination. Harassment. Victimisation.