Complainant

Respondent

Parties

Antonio  Duarte

Pulse Security Management

Representatives

  Self

Eamonn Gibney

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00068795-001

22/01/2025

The Complainant is employed as a Security Officer with the Respondent.  He commenced employment on 01/02/2024.  He is paid €15.00 per hour when working on door security.  The Complainant submitted a complaint to the Workplace Relations Commission on 22/01/2025 alleging that he had been discriminated against by reason of race, conditions of employment and unlawfully discriminating against him or harassing him.

The Respondent refutes the allegations and submits that the issue complained of was necessary to ensure the Respondent’s compliance with its statutory and licensing obligations.

The Complainant gave evidence on oath.  He commenced employment on 01/02/2024.  He had previously worked for the Respondent and returned when invited to do so by one of the senior managers (Mr A).   The Complainant submits that he was discriminated against by the Respondent when he received an email on 16/01/2025 requesting copies of his passport, visa, driving licence and permit to work.  He replied to this email stating that as he was an EU citizen he did not require a permit and he did not send his passport as he had submitted this when he started work and it had three years remaining and it was also submitted a number of times previously.  The Complainant submitted that the Respondent had no reason to do this.  He had an email exchange with the Respondent’s HR department.  He is aware that this email was not sent to all employees and he does not know why.   The Complainant believes that because he is Portuguese and has worked in Ireland since 1999 he does not need to produce most of the documentation requested by the Respondent. The Complainant submits that this is discrimination on the ground of race.

The Complainant also gave evidence that he continues to be discriminated against in relation to his conditions of employment.  When he took up his present role his rate of pay was agreed with Mr A as €15.00 per hour.  In the past year the Complainant stated that he has worked every weekend with the exception of his holiday periods and he did not get a Sunday allowance.  The Complainant believes that this should be €3.44 per hour.   The Respondent paid an increase to its Irish employees but he did not receive this.

The Complainant also submitted a complaint that he was treated unlawfully by the Respondent by harassing him.  The Complainant gave evidence this this harassment consisted of emails from the Respondent’s HR department and threatening him with disciplinary action if he failed to submit the documentation they had requested.

The Complainant is seeking to have his overtime paid at the agreed rates and have his Sunday pay rectified. He is also seeking compensation for the effects of the discrimination.

The Complainant was cross examined by Mr Gibney on behalf of the Respondent.  The Complainant stated that he does not recall receiving a contract of employment.  He did have one when he was employed by the Respondent in 2019.

Mr Gibney showed the Complainant a copy of a contract of employment  dated 19/02/2024 and the Complainant confirmed that his signature was on that contract. He confirmed that he could not recall signing this document.   It was put to the Complainant that the rate of €15.00 per hour was only paid when a security officer was doing door security work.  The Complainant stated that this was not what he agreed with Mr A.

The Complainant was asked if it was his position that he was discriminated against because the Respondent was required by law to have copies of the documents and that when he received the email this was from a new person in HR, Ms Smith, who was asked to complete an audit of documentation to ensure compliance with the Private Security Services Act, 2004.  The Complainant stated that he had submitted most of this documentation on three previous occasions.

The Complainant was asked if he required a difference level of documentation when he was assigned to duties involving UEFA and he confirmed that he was.  The Complainant stated that he was aware that  some people did not have the documentation.  Mr Gibney clarified that in the events security there are different levels such as door, static, and event stewards.  There is no Private Security Authority (PSA) requirement for stewards to have the same documentation as security officers.

It was put to the Complainant that his employer asked for copies of documents and he was told that as these were not on file he was required to resubmit.  The Complainant agreed and said that he sent in his licence. The Complainant was asked if he was told that the Respondent could not find the documents previously submitted and this was the reason why the request was issued.  The Complainant stated that he had already submitted the documentation on three occasions.

The Complainant was asked how the sending of the email constituted discrimination.  He stated that he worked with an Irish employee who told him that he had not received a similar email.  It was put to the Complainant that his contract of employment outlined what an employee should do if they felt they were being subjected to harassment and he was asked if he had followed this.  The Complainant stated that he was alleging harassment and that he wanted the WRC to hear this.

The Complainant was asked how he could conclude that he was discriminated against in relation to rates of pay when compared to other employees in the company.  The Complainant stated that Mr A. said that he would raise the rate of pay but this did not happen.  An employee who was on a particular site (Site X) was getting more than he was.  The Complainant stated that he was mistreated and he worked every weekend but was not paid Sunday Premium or any allowance.  The ERO states that he should get an allowance.

In a closing submission the Complainant stated that colleagues from Ireland did not get the email.  One individual who worked with him did not get any email and surprisingly he did get one after the Complainant raised his complaint.  The Respondent is continuing to refuse to deal with the pay issues and this is discrimination against him.

The Complainant confirmed that he was given adequate opportunity to outline his complaints at the hearing.

It was submitted on behalf of the Respondent that they are required by law to comply with the standards set our in the Private Security Services Act, 2004 and the PSA standard 28-2013 which states:

“4.1.5  Work Permits, Authorisations and Permissions. 

4.1.5.1  The organisation shall ensure that all necessary documentation for work visa applications and permissions/authority to work is fully completed before an individual is employed.  This applies to renewal of such applications also.

4.1.5.2  The organisation shall maintain a register of all employees who have applied for and obtained permission or authorisation from the State to work in Ireland.  The organisation shall review the validity of these permissions or authorisations at least every 6 months and shall keep a documented record of such reviews”.

The Respondent is also required to details of each employee’s PSA licence number and expiry date and basic employee details and to retain these for a minimum of five years.

The Respondent did not have a dedicated HR manager and following the successful recruitment of a person  an audit was conducted by her of the personnel records to ensure compliance with the legislation.  Where it was established that a record was not in order an email was sent to request copies of relevant documentation.  The Complainant was sent an email and as there was no records to indicate the Complainant’s nationality evidence was sought for audit purposes as required by law.

The Complainant responded to say that he had previously submitted these documents and these were not on file.  In those circumstances it was essential that the Respondent updated its records and the email sent stated;  “We are updating your personnel records and require a copy of your work permit, front and back and PSA Licence, front and back.  Please could you send us a copy of your work permit and PSA Licence, front and back”. 

The Complainant replied stating that he found out “that only foreign work force got the email, I did asked an Irish colleague, he did not received, also explained to HR, that I do not need work permit because I am an EU citizen, and the Documents asked, copy of the passport and PSA Licence was the HR was already provided when I was recruited, also find out that my Irish colleague got his wage right with new ERO rates of €16.80 per hour, and I still get paid €14.50 per hour same as last year minimum wage rates for the Security Industry.  When my Credentials and training requires, I higher pay”. 

It was submitted on behalf of the Respondent that the Complainant was employed as a static security guard and was paid the appropriate rate as per his contract of employment and the security industry ERO.

Ms Dearbhla Smith gave evidence on oath on behalf of the Respondent.  Ms Smith gave evidence that she commenced employment with the Respondent in November 2024 as a HR Generalist.  Her initial task was to conduct an audit of the personnel files to ensure that they were fully compliant with the law and the standards required.  Ms Smith stated that non-compliance could result in the Respondent losing their licence to operate as a security company. Ms Smith stated that the result of her audit was that there were a number of files where the required documentation was not in place.  She decided that the most efficient way to obtain the information was to contact the employees directly and request the documentation.  In order to do this in an efficient manner she done this in batches and started with employees who were non-national, then EU and finally Irish.

Ms Smith gave evidence that most employees responded promptly and provided the documentation.  The Complainant was the only employee who refused to provide all the documentation requested.  There was no resistance from any other employee.  Where necessary some clarified if they were EU citizens and did not require work permits.

Ms Smith acknowledged that the Complainant may have submitted the documentation previously but this was not on his personnel file.  She confirmed that a copy of his passport was subsequently found and she did not need to follow this up with the Complainant.  Ms Smith confirmed that the first time the Complainant was aware of this was at the WRC hearing.

In response to a question from the Complainant she said that if the email which indicated that disciplinary action could follow if there was non-compliance this was merely intended to map out the likely course of action.  It was not an attempt to harass the Complainant.

In a closing submission on behalf of the Respondent Mr Gibney stated that the chain of emails was adequately explained by Ms Smith.  There was engagement with the Complainant in relation to this matter and Ms Smith was only doing her job.  There was no malice on the part of Ms Smith towards the Complainant and she dealt in a similar manner with the other employees who were the recipients of the email.  It is the Respondent’s position that the sending of an email requesting documentation in order to ensure absolute compliance with the legislation governing its business does not constitute discrimination on any of the grounds complained of.  The Complainant made a lot of references to hearsay matters but these are not relevant to this complaint.

The Respondent refutes the notion that the Complainant was discriminated against.  He was not singled out but was part of a routine audit that showed discrepancies in the documentation.  The Respondent acknowledges that its administrative process were not optimal at that time and the quickest way to rectify matters was to reach out to all affected employees.  All employees with the exception of the Complainant engaged and cooperated with the request.

The Complainant submitted a complaint to the Workplace Relations Commission on 22/01/2025 alleging  that he was discriminated against by the Respondent  on the ground of race and his conditions of employment.  He has also alleged that he was subjected to harassment by the Respondent.

The Respondent submits that the complaint is not well founded as no discrimination took place and that it had complied with its obligations under the Employment Equality Acts and its obligations as set out in the Supreme Court case of Nano Nagle v Marie Daly [2019] IESC 63.

In evaluating the evidence before me, I must first consider whether the Complainant has established a prima facie case pursuant to Section 85A of the Acts. The Labour Court has consistently held that the facts from which the occurrence of discrimination may be inferred must be of “sufficient significance” before a prima facie case is established and the burden of proof shifts to the Respondent.

Section 6 of the Employment Equality Act states:

“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 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—

(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 civil status (in this Act referred to as “the 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 to subsection (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”)”.

This complaint is made pursuant to the Employment Equality Acts on the basis that the Complainant was discriminated by the Respondent because of his race and conditions of employment. 

The onus of proof is on the Complainant to first establish a prima facie case of discrimination of, in this case, race, before the burden shifts to the Respondent to set out its defence. The principles were set out by the Labour Court in Southern Health Board v Mitchell(2001) DEE 011:

“(2) 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.

(3) Only if these primary facts are established to the satisfaction of the Court, and they are regarded as being of sufficient significance to raise a presumption of discrimination, does the onus shift to the Respondent to prove that there was no infringement of the principle of equal treatmentfollowed”.

Bolger, Bruton, Kimber; Employment Equality Law 2nd Ed. 2022 at para 2-207 commenting on Mitchell:

“This test requires that facts relied upon by a Complainant must be proved by them to the satisfaction of the Tribunal or Court at the level of balance of probabilities and if proven, must be of sufficient significance as to raise an inference of discrimination. In the case before it, the Labour Court found, on the facts of the case, that the Complainant could not demonstrate superior qualifications and experience than the successful appointee and that she therefore failed to discharge the burden of proof that rested on her”.

Section 85A of the Acts states that where 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 seeks to establish discrimination on the grounds of race and conditions of employment by virtue of the fact that the Respondent requested copies of certain documents in order to ensure its compliance with the statutory requirements of the security industry.  The Respondent submits that it had an obligation to ensure compliance in order to maintain its licence.  The Respondent accepts that the Complainant had previously submitted some of those documents but as these could not be located the Respondent decided to ask any employee to resubmit any documents that were missing. 

I find that the Complainant has not made out a prima facie case that the Respondent did discriminate against him on the  ground of race and conditions of employment within the meaning of section 16 of the Acts. 

Claim of Harassment:

The next element of the Complainant’s complaint that I must address relates to the claim that he was subjected to harassment by the Respondent within the meaning of Section 14A of the Acts.

“Harassment” is defined by section 14A(7) of the Acts which states:

“references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds …. 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”.

Section 14A(7)(b) further states that "such conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material".  

For a complaint of harassment under the Employment Equality Acts to be made out, the Complainant must demonstrate a nexus between the alleged treatment and the discriminatory ground. 

The Complainant submits that the following acts constitute harassment within the meaning of Section 14A of the Acts, namely: being advised that if he did not comply with the request to submit certain documents he could be subjected to disciplinary action.

The Respondent disputes the claim of harassment contrary to Section 14A of the Employment Equality Acts and submits that the Complainant has failed to identify which conduct is alleged to have had the purpose of violating his dignity. However, it is submitted that no actions on the part of the Respondent had such purpose or effect. What happened was simply that the Complainant took issue with the request from the Respondent to provide documentation in order to ensure that they were compliant with their statutory obligations.

It is clear from the evidence that the Complainant had issues in relation to elements of  the request as he had previously submitted the documents requested.  The Respondent acknowledges that he had submitted this documentation but following an audit of their personnel files this documentation was not in place.  The request was made to ensure that their files were in order.  This request was made to any employee whose file was missing documents.  The Respondent submits that while the documentation was already submitted the most efficient way to bring the files up to date was to request the documentation from the employees involved.

It was the Complainant’s evidence that he believed that the request was not made to Irish employees and he was aware of this when he asked a colleague.

Having regard to the evidence adduced, I am satisfied that the Complainant has not presented any evidence from which I could reasonably conclude that he was subjected to harassment on the ground of his race and conditions of employment contrary to Section 14A of the Acts.  Consequently, I find the Complainant, on the balance of probabilities, has failed to establish a prima facie case of discrimination (for the purposes of this Act) on the grounds of race and conditions of employment or that he was victimised or discriminated against. On the basis of the foregoing, I find that this complaint is not well founded.

Having considered the submissions of both parties and the evidence put forward at the hearing of this complaint, I find that the Complainant has not raised a prima facie (upon initial examination) case of discrimination on the grounds of race and conditions of employment contrary to the Employment Equality Acts, 1998 – 2015.

I find that the Complainant  has not succeeded in discharging the burden of proof required to establish that he was discriminated against and subjected to harassment  by the Respondent on the race and conditions of employment grounds and therefore I find that the Respondent did not discriminate against or harass the Complainant.

Discrimination on grounds of race and conditions of employment.