Complainant

Respondent

Anonymised Parties

A General Labourer Mr. C

A Contractor

Representatives

  Self -represented

 Cillian McGovern B.L. instructed by Barry Crushell solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 81E of the Pensions Act, 1990 as amended by the Social Welfare (Miscellaneous Provisions) Act 2004

CA-00060367-001

04/12/2023

The Complainant has raised a complaint seeking adjudication by the Workplace Relations Commission (“WRC”) under  the Employment Equality Acts.

The Complainant submits that he was employed by the Respondent from 4th April 2023 to 15th September 2023.

The claim was submitted on 4th of December 2023 and refers to the complainant’s employment with the respondent which he submits ended on 20th of September 2023.  The cognisable six-month period in respect of claims submitted on 5th of June 2023. 

The respondent submits that they were not aware that the complainant was a member of the Travelling Community until it was brought to their attention in the complaint form.    The respondent denies that the complainant was discriminated against.  

The Complainant submits that he was employed by the Respondent from  4th of April 2023  to 15th September 2023.

The complainant in his claim form submitted that he was discriminated against by reason of his membership of the Traveller Community.

The complainant submits that he had been discriminated against by his employer prior to dismissal from the time the respondent became aware that the complainant was a member of the travelling community.

The complainant submits that he was victimised and segregated from fellow employees and was subjected  to several false accusations of theft which he believes were based on his being a member of the traveller  community.

The complainant submits that his role with the respondent  involved the removal of waste from the site, heavy lifting and safe delivery of new windows and doors.   

The complainant submits that all was going well until a new door went missing from the premises of one of the residents. The resident happened to be the complainant’s sister Ms. K

The complainant submits that the respondent accused him of the theft and even though the complainant had not stolen the door he submits that the respondent attitude and treatment of him changed after this incident, and he was told by Mr. H that Mr. M wanted the complainant and his cousin out.

The complainant submits that he was constantly being watched by other workers and that they (the complainant and his cousin) were not permitted on the site unless Mr. H was present and if Mr. H could not be there they had to stay at home.

The complainant submits that for the last month of their employment he and his cousin  were told to stay on site whilst everyone else moved on to other work for the respondent in other sites.

The complainant submits that he was dismissed on 15th of September 2023.

The respondent submits that it retrofits housing estates and carries out response and planned maintenance focusing on the requirements of social housing bodies to continually ensure quality homes and service to their tenants.

The respondent submits that the Complainant commenced employment with the Respondent on 4th of April 2023 and that the employment of the Complainant was terminated on 15th September 2023.  The Complainant was employed as a General Labourer.

The Respondent submits   that they did not know that the complainant  was a member of the Travelling Community until it was brought to their attention on 12 December 2023, in the complaint form.

The Respondent's position is that although it was unable to continue to employ the Complainant, that was not due to their membership of the travelling community but that there were a number of operational and commercial impediments which prevented several projects some progressing and required the redundancy of multiple employees.

When the Complainant was asked not to be on-site due to the foreman's unavailability, it was due to the requirement to have a qualified health and safety supervisor on-site when any work was being undertaken.

In respect of the theft of the door, the respondent submits that it was the Complainant’s responsibility to deliver the door; when it became apparent that the door was stolen, misplaced, or mislaid, it was not unreasonable on the part of the Respondent to make enquiries to the person who was tasked with delivering it.

The Complainant was further asked to make enquiries on-site as to the possible whereabouts of the door. Not asking the person designated to provide the door, as to its whereabouts, for the fear of offending, would be a most unplausible suggestion.

Section 6 of the Employment Equality Act [1998-2022] provides:

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…….”

(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”).

Section 8 of the Employment Equality Act [1998-2022] provides as follows in relation to discrimination by employers:

8.—(1) In relation to—

(a) access to employment,

(b) conditions of employment,

(c) training or experience for or in relation to employment,

(d) promotion or re-grading, or

(e) classification of posts,

an employer shall not discriminate against an employee or prospective employee, and a provider of agency work shall not discriminate against an agency worker.

(2) ……..

(3) …….

(4) A person who is an employer shall not, in relation to employees or employment—

(a) have rules or instructions which would result in discrimination against an employee or class of employees in relation to any of the matters specified in paragraphs (b) to (e) of subsection (1), or

(b) otherwise apply or operate a practice which results or would be likely to result in any such discrimination.

(5) Without prejudice to the generality of subsection (1), an employer shall be taken to discriminate against an employee or prospective employee in relation to access to employment if the employer discriminates against the employee or prospective employee—

(a)    in any arrangements the employer makes for the purpose of deciding to whom employment should be offered,

(b)    by specifying, in respect of one person or class of persons, entry requirements for employment which are not specified in respect of other persons or classes of persons, where the circumstances in which both such persons or classes would be employed are not materially different, or

(c)     by publishing or displaying, or causing to be published or displayed, an advertisement which contravenes section 10(1) in so far as such advertisement relates to access to employment.”

Section 85A of the Employment Equality Act [1998-2022] provides that a complainant must set out a prima facie case of discrimination – ie he/she must establish facts from which discrimination may be inferred. Where a complainant discharges this burden, the onus is then shifted to the Respondent to prove to the contrary. In Southern Health Board v Mitchell [DEE011 [2001] ELR 201], the Labour Court held that the first requirement is that the Complainant must establish on the balance of probabilities, the primary facts from which it may be presumed that the principle of equal treatment has not been applied to them. This approach has been endorsed and elaborated upon in several cases – for example -  in Cork City Council v McCarthy EDA 21/2008, the Labour Court stated:

“The type or range of facts which may be relied upon by a complainant may vary significantly from case to case. The law provides that the probative burden shifts where a complainant proves facts from which it may be presumed that there has been direct or indirect discrimination. The language used indicates that where the primary facts alleged are proved it remains for the Court to decide if the inference of presumption contended for can properly be drawn from those facts. This entails a consideration of the range of conclusions which may appropriately be drawn to explain a particular fact or a set of facts which are proved in evidence. At the initial stage the complainant is merely seeking to establish a prima facie case. Hence, it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts.”

The complainant Mr. C  in his claim form submitted that he was discriminated against by reason of his membership of the Traveller Community.

The complainant submits that he had been discriminated against by his employer prior to dismissal from the time the respondent became  became aware that the complainant was a member of the travelling community.

The complainant submits that he was victimised and segregated from fellow employees and several false accusations of theft which he believes were based on his being a member of the traveller  community,

The complainant Mr. C  advised the hearing that he was employed by the respondent as a general labourer from 17th of April 2023  to 20th September 2023.

The complainant stated that his cousin Mr. J was also employed by the respondent and that both of them were dismissed shortly after  the respondent became aware that they were members of the Traveller Community.

The complainant advised the hearing that the respondent had been engaged by the government to retrofit houses.  The complainant advised the hearing that his work involved taking out windows and doors and lifting and carrying heavy materials to skips. 

The complainant advised the hearing of an incident which took place where a door which was meant to be delivered and  fitted in a house in which they were working was stolen causing the job to be held up for a number of weeks. 

The complainant stated that the door in question was destined for the complainants’ sisters house as she was living in the area in which the work was being carried out.  The complainant advised the hearing that the respondent accused him of stealing the door and that this was due to the fact that he was a member of the Traveller Community.

 The complainant advised the hearing that he had not stolen the door and had told the respondent that he had not stolen the door but that the respondent then repeatedly asked him to tell them where the door was.

  The complainant stated that he would not steal a door and more especially not a door which was meant for his sister’s house. 

 The complainant advised the hearing that he later became aware that it was another employee of the respondents Mr. R who had in fact stolen the door and that the respondent had also become aware of this but had never told the complainant this.   The complainant stated that Mr R was allowed to get away with stealing the door but that the complainant who had done nothing wrong had been accused of the theft due to the fact that the complainant was a member of the travelling community.

The complainant advised the hearing that he was dismissed on 15th of September and at the time of his dismissal he was told by the foreman Mr. H that the job was gone because of the door and ‘because of who you are’.   The complainant stated that his cousin Mr. J was also dismissed at the same time and was given the same reason.

The complainant advised the hearing that prior to being dismissed both the complainant and his cousin were left at the site with no work to do for three and half weeks while all other employees were moved onto other sites and given work to do.    The complainant stated that he and his cousin were left on the site for weeks without and interaction with anyone else and where there was no work for them.

The complainant stated that he  had understood that they would be moved to other sites along with the other employees but that this did not happen.  The complainant stated that that this was due to the door incident and the fact that the respondent Mr. M at that time became aware that they were members of the Traveller Community.

The complainant advised the hearing that following the door incident the foreman Mr. H had advised the complainant that the boss Mr. M had wanted him gone.  The complainant stated that Mr. H had told him not to trust anyone and not to let the lads see him on site.  Witness for the respondent Mr. H stated that he had made this comment but was in fact referring to the residents of the area in which they were working as Mr. H  stated that it was a very rough area.  Mr. H added that an individual working in one of the houses had previously been stabbed when someone burst into the house they were working in.  Mr. H advised the hearing that a resident from one of the houses had previously attacked him and other workers with a hammer.    Mr. H stated that that his warning to the complainant related to the residents of the area and not to other employees.    

The Respondent prior to the hearing submitted that  that they did not know that the complainant  was a member of the Travelling Community until it was brought to their attention in the complaint form submitted on 12 December 2023.  However, in direct evidence at the hearing witness for the respondent Mr. H advised the hearing that he was aware that the complainant and his cousin were members of the traveller community at the time they were given the jobs. 

Witness for the respondent and foreman Mr. M when questioned at the hearing stated that the complainant was not accused of stealing the door but was asked if he knew where the door was as the respondent was aware that he lived in the area and so had presumed he would know something about where the door had gone or who had taken the door.  Witness for the respondent Mr.  H stated that he had not accused the complainant of taking the door but  that he had asked him where the door was.  Mr, H added that all he wanted was for the complainant to ask around about the door.   Mr. H  also advised the hearing that he was aware that the complainant and his cousin were members of the Traveller Community when they were taken on.

Witness for the respondent Mr  H  stated that he had no problem with the complainant being a member of the Traveller Community.   Mr. H advised the hearing that he did not know at the time, but another employee had taken the door and that he found this out about a week later. 

In response to the complainants’ allegations that he and his cousin were left on the site for over 3 weeks with no work to do while other moved onto different sites Mr.  H advised the hearing that the work on that site had dried up and that they had kept the complainant on in the hopes that further work would materialise for them.      

The respondent stated that others had moved on to different sites and that it was his hope that he would have more work for the complainants, but the work did not materialise.  The respondent stated that this had nothing to do with the fact that the complainant was a  member of the Traveller Community but was to do with the level of work and the requirement for general labourers.

The complainant advised the hearing that he and his cousin Mr. J  had been treated differently by the respondent due to their membership of the Traveller Community.  The complainant advised the hearing that he and his cousin were given dangerous jobs to do and were ordered to go up onto the roofs of houses and cap chimneys without wearing any harnesses or safety equipment.  The complainant advised the hearing that they were instructed to do this, or their jobs would be gone. 

Witness for the respondent Mr.  H did not deny that the complainant carried out work on the roof and without any safety equipment, but he stated that others also did this.    Mr. H stated that the complainant should probably not have done this work without a harness, but he added that he himself had also done this without a harness    Upon re-examination Mr. H  admitted that he had not capped the chimneys stating ’I’m sorry I didn’t do any caps”.  

Witness for the respondent and Operations Director Mr. P stated that he understood that they had subcontracted out that work (in respect of chimneys) to others and so he was surprised to hear that the complainant had been doing this work as the company had contracted others to carry out the job of cleaning the chimneys and so he had understood that those individuals would cap the chimneys and that they would have had safety equipment for the jobs.   Mr. P stated that he had not met the complainant prior to the hearing and that he was not aware that the complainant was a member of the travelling community.

Mr. P stated that he was also not aware that the complainant was sent up on the roof without safety equipment and that this should not have happened as others were hired to carry out that job and who would have had the appropriate safety equipment.   The complainant stated that the whole project was running behind and there had been many delays and so they didn’t have time to wait for the subcontractors to come and do the roofs on all of the houses so to save time the complainant was instructed to do it.  The complainant advised the hearing that he had at the time objected to capping out the chimneys firstly because the chimneys had not been cleaned first and would not be safe if capped without being cleaned and secondly due to the fact that he was expected to carry out the work on the roof without any safety equipment.    The complainant told the hearing that he was instructed to do it, or his job would be gone.

Witness for the respondent, Foreman Mr. M advised the hearing that they had subcontracted out the job of cleaning and capping the chimneys and so he was not aware that the complainant had been instructed to cap the chimneys.  Mr. M added that the complainant should not have been working on the roof.    Mr. M added that the complainant had worked on the site under the supervision and direction of  Mr. H.

Mr. M stated that he was not aware that the complainant was a member of the Traveller Community stating that the company does not look at backgrounds.  Mr. M stated that the complainant would have been kept off the site on occasions when Mr. H was not on site as he was the Foreman and needed to be present for Health and Safety reasons.  Mr. M in his evidence about the conversation which took place about the missing door stated that  he was not accusing the complainant of taking the door but  that he had wanted the complainant to ask around about the door to try and find out where it was as he lived in the area.  

The complainant advised the hearing he and his cousin were  instructed to carry out the work on the roof  without any safety equipment and that this was due to the fact that they were members of the Traveller Community.    The complainant stated that he objected to doing this work but was told his job would be gone if he didn’t do it.    He told the hearing that one wrong step could have led to him falling to his death,  the complainant added that he was made to feel like their lives did not matter because they were Travellers.  The complainant stated that non-Travellers were not instructed to carry out this work.

The complainant at the hearing came across as credible and consistent in his evidence.  The complainant also provided video evidence in respect of working on the roof without any safety equipment.  He also provided video evidence of the deserted site where he states he and his cousin were left when others moved on to a different site.    The respondent denied certain allegations, and I note that the respondent witnesses gave conflicting and contradictory  evidence in respect of some of the matters raised.   

Having considered the totality for the evidence adduced by the parties in respect of these matters I am satisfied on the balance of probabilities that the complainant Mr. C was discriminated against by the respondent on grounds of his membership of the travelling community and  accordingly, I direct the respondent to pay the complainant the sum of €4,000 in compensation in respect of this matter.

I find that the complainant Mr. C was discriminated against by the respondent on grounds of his membership of the travelling community and  accordingly, I direct the respondent to pay the complainant the sum of €4,000 in compensation in respect of this matter.