Complainant

Respondent

Parties

Eyob  Van Haute

Google Ireland Limited

Representatives

Self-represented

Rosemary Mallon BL instructed by Colum Holland Matheson LLP

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-00075019-001

01/09/2025

The Complainant was employed by the respondent from 2 September 2024 until 3 July 2025 when he was dismissed with the respondent citing performance issues as the reason for dismissal.

On 1st of September 2025 the complainant brought a complaint under the Employment Equality Act, 1998-2015 alleging discrimination on the grounds of his race, following his dismissal.

The respondent denies that the complainant was subjected to discrimination submitting that he was dismissed for performance issues during his probationary period having been placed on two successive Performance Improvement Plans by the respondent.

The complainant submits that,

He was employed by the respondent from 2 September 2024 until 3 July 2025.

The complainant submits that he was dismissed for alleged performance issues having been placed on two successive Performance Improvement Plans by the respondent.

The complainant submits that he is Black and was dismissed.

He submits s that his dismissal was not the result of a fair and consistent assessment of performance, but rather the result of a selective process in which standards were applied inconsistently, leading to less favourable treatment.

The complainant submits that he was not a poor performer but rather there was an issue regarding how his performance was evaluated and that it was not evaluated in context.

The complainant submit s that one colleague outside of his protected group performed poorly but was not placed on a performance plan.

The complainant submits that multiple employees who exited the organisation under similar performance circumstances were Black.

The respondent submits that.

 the Complainant was an employee of the Respondent from 2 September 2024 until 3 July 2025.

the Complainant was not dismissed for any discriminatory reasons but was dismissed due to his poor performance following a fair and proper process on foot of two performance improvement plans (PIP) during his employment.  

 On 27 February 2025, the Complainant was placed on a PIP for 30 days. On 2 April 2025, it was determined that it was necessary to extend the PIP to 22 April 2025, to allow the Complainant additional time to address the areas of concern.

At the end of this, the Complainant had not met the objectives but was allowed to pass the plan as he had shown some progress and engagement with the goals set out. He was advised of this on 23 April 2025.

The Complainant was placed on another PIP on 26 May 2025 as his performance was not meeting expectations.   He was advised that if his performance did not improve on an immediate and sustained basis this may result in further corrective and/ or disciplinary action.

By letter dated 30 June 2025, the Complainant was invited to a disciplinary meeting scheduled for 2 July 2025. By letter dated 3 July 2025 the Complainant was informed in writing of the decision to dismiss him.  An appeal meeting took place on 28 July 2025 which upheld the decision to dismiss.

The complainant at the hearing was allowed to read from a written statement to present his case.     The complainant in this regard read through a 3-page prepared statement which outlined his claim and the events leading up to his dismissal.  The complainant confirmed that this was his evidence.

Following the complainant’s reading of his statement the Respondent representative Ms. Rosemary Mallon B.L. made an application that the case be decided on the preliminary matter of failure to establish a prima facie case of less favourable treatment on the ground of race. 

The respondent pointed to the fact that the complainant in his direct evidence had not named any comparator in respect of whom he had allegedly been treated less favourably.  The respondent also pointed to the fact that the complainant had not named any individual whom he was alleging had subjected him to less favourable treatment.

The complainant in his direct evidence had referred to having been placed on a performance improvement plan (PIP) within the first two months of his employment and he briefly outlined the factors which he felt had contributed to the respondent concluding that was underperforming.  The complainant submitted that his targets were “unachievable.”   

The complainant also stated that his performance had improved in quarter 2 and added that the respondent when assessing his performance had failed to contextualise it correctly.   The complainant stated that he had been placed on two PIPs despite scoring better than another colleague whom he asserts wasn’t subject to the same formal process.   The complainant in his direct evidence did not provide details in respect of these comparators. 

The complainant in his oral evidence referred to the fact that he is black and asserted that he had observed that other employees who were also black had exited in similar circumstances.  The complainant did not provide any names of or details of the races of these individuals and not outline any dates or details in respect of these other alleged dismissals.   

The complainant stated that he believed that his dismissal was not based on objective performance standards adding that he was the only one who got a PIP in the early stages.   The complainant’s oral evidence did not name any comparators of a different race who were treated more favourably or of the same race whom he alleges were also treated in a less favourable manner.   

Following the reading of his statement the complainant was asked if he had anything else to add and responded in the negative. 

The complainant was asked if this concluded his evidence or if he had anything further to add to which he again confirmed that this concluded his evidence.    The complainant stated that he had also submitted documents to the WRC and stated that these were also to be included in his case. 

Following the complainant’s reading of his statement the Respondent representative Ms. Rosemary Mallon B.L. made an application that the case be decided on a preliminary matter of failure to establish a prima facie case of less favourable treatment on the ground of race.   Ms. Mallon pointed to the fact that the complainant had not named any comparator in respect of whom he had allegedly been treated less favourably.  Ms. Mallon also pointed to the fact that the complainant had not named any individual whom he was alleging had subjected him to less favourable treatment.  

The respondent added that the complainant’s direct evidence was at its height, full of assertions, assumptions, and presumptions, but backed up with no evidence.

The respondent stated that the complainant had made this wild accusation that other people of colour were treated the same way.  Ms. Mallon on making her application stated that the complainant had not identified anyone he claimed had discriminated against him adding that he was on a PIP and then he went on to a second PIP and failed that while a probationary employee and that he was disgruntled with the outcome,

The Respondent argued that the Complainant has failed to establish a prima facie case of discrimination as required by the Acts stating that the burden of proof lies with the Complainant to demonstrate discrimination and provide credible evidence to support their claims.   The Respondent cited Section 85A of the Acts, which places the burden of proof on the complainant to establish facts from which discrimination may be inferred.

The respondent argued that the complainants evidence amounted to mere speculation mere assumption/presumptions which is not sufficient to indicate a link to the protected ground.

The respondent went on to say that evidence has to be of some weight to show that persons of a different nationality were treated differently and asserted that the complainant s evidence at its height was backed up with presumptions and assumptions.

The respondent also referred to the fact that the complainant indicated that he did not intend to call any evidence and had not even named the persons whom he alleges discriminated against him.  

The respondent also referred to the fact that the complainant when asked by the AO where is the discrimination he answered that it was ‘by being put on a PIP.’

The respondent referred to the fact that the complainant himself in his statement admitted that he did not see that as discrimination initially but that it was a concern which developed over time following which he added that it is for the WRC to decide if there was discrimination.  Ms. Mallon also referred to the fact that the complainant had not at the time raised any concern regarding discrimination.

The complainant in response to the application stated that he had mentioned that he was not the only black person to be treated like this.

In considering this matter I must first look to the legislation and to relevant case law.   Section 6(1) of 1998 Act provides that discrimination occurs where, on one of the discriminatory grounds, a person is treated less favourably than another is, has been or would be treated.   Section 6(2) of the 1998 Act identifies race as one of the protected grounds.

Section 85A of the 1998 Act sets out that the burden of proof in the first instance is on a Complainant, to establish facts which, on an initial examination, lead to a presumption that discrimination has occurred.  It states:

“85A (1) Where in any proceedings, facts are established by or on behalf of a complainant, from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.”

The WRC and the Labour Court’s approach to this issue and the test for applying section 85A of the 1998 Act is well settled in a line of decisions of both bodies starting with the Labour Court’s Determination in Mitchell v. Southern Health Board [2001] 12 E.L.R. 201 wherein the Labour Court stated:

“The 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 where 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.”

In Minaguchi v. Wineport Lakeshore Restaurant No. EDA034 / DEC-E2002-020 the “primary facts” were defined as follows:

“It appears to me that the three key elements which need to be established by a claimant to show that a prima facie case exists are:

that she/he is covered by the relevant discriminatory ground(s), that she/he has been subjected to specific treatment and that this treatment is less favourable than the way someone who is not covered by the relevant discriminatory ground is, has been or would be treated.”

In Mary Margetts v. Graham Anthony & Company Limited EDA038 the Labour Court stated that “[t]he mere fact that the complainant falls within one of the discriminatory grounds laid down under the Act is not sufficient in itself to establish a claim of discrimination.

The complainant must adduce other facts from which it may be inferred on the balance of probabilities that an act of discrimination has occurred.”

The Labour Court, in its decision in Arturs Valpeters v. Melbury Developments Ltd [2010] 21 E.L.R. 64, addressed the onerous nature of the burden of proof stating that:

“This requires that the complainant must first establish facts from which discrimination may be inferred.  What those facts are will vary from case to case and there is no closed category of facts which can be relied upon.  All that is required is that they be of sufficient significance to raise a presumption of discrimination.  However, they must be established as facts on credible evidence.  Mere speculations or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn.  Section 85A places the burden of proof fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.”

And the Court of Appeal England and Wales in Igen v Wong EWCA/Civ/2005 stated that the claimant must ‘prove on the balance of probabilities facts from which the tribunal could conclude, in the absence of an adequate explanation, that the employer has committed an act of discrimination against the claimant.’

In considering this matter I am mindful that it is very clear from the aforementioned legislation and caselaw that the Complainant bears the burden of proof in establishing facts from which an inference of discrimination can be drawn.   It is only if the Complainant establishes a prima facie case of discrimination, that the burden of proof shifts to the Respondent to rebut the prima facie case.

I note that the complainant in his evidence referred to the fact that he is black and asserted that he had observed that other employees who were also black had exited in similar circumstances.  The complainant did not provide any names of or details of these individuals or any dates or details in respect of these other alleged dismissals.    I am mindful that the complainant’s oral evidence to the hearing did not name any comparators of a different race who were treated more favourably, or of the same race whom he alleges were also treated in a less favourable manner.    The complainant stated that he believed that his dismissal was not based on objective performance standards adding that he was the only one who got a PIP in the early stages. 

Following the reading of the statement the complainant was asked if he had anything else to add and responded in the negative.    The complainant was asked again if this concluded his evidence and he responded stating that it had.

Furthermore, I note the Respondent position that in these cases, the Court emphasises that speculation or unsupported assertions cannot be elevated to a factual basis for discrimination.

The Respondent submits that direct discrimination consists of less favourable treatment on the basis of a protected ground (in this instance race [as compared against a comparator] and that the Complainant’s allegations in this case are grounded on presumptions and assumptions.

The Respondent submits that the Complainant was treated fairly and the same as all other employees, in line with the Respondent’s policies that he was put on 2 PIPs during his time as a probationary employee which he failed and that he did not at the time raise any issue of discrimination.   The Respondent contends that the Complainant has failed to identify a comparator to whom he was treated less favourably, as required by Section 6(1) of the Acts noting that.  the complainant in his evidence made a vague reference to other underperformers whom he states were outside of his protected group but whom he asserts were not placed on a PIP.  The respondent also pointed to the complainant’s assertion that other black people exited in similar circumstances but again he did not provide any names or details in respect of these individuals or the circumstances under which they left.  The respondent also referred to the fact that the complainant has not named any individual whom he is alleging discriminated against him or committed any discriminatory act.

In accordance with case law cited above in order  to succeed in a complaint of discrimination the Complainant must establish that he comes within one of the discriminatory grounds, namely the race ground, that he was subjected to specific treatment and that the treatment was less favourable than someone not covered by the discriminatory ground.  Case law, including Melbury v. Valpeters Labour Court EDA0917 and Cork City Council v. Kieran McCarthy EDA0821, supports the requirement for the complainant to establish the primary facts of discrimination.

In considering this matter I am cognisant of the Labour Court decision in The Rotunda Hospital v. Noreen Gleeson (DEE003/2000) wherein it states, “The first question the Court has to decide is whether the claimant has established a prima facie case of discrimination.”

I am also mindful of the Labour Court ruling in the case of Bus Eireann v. SIPTU[PTD8/2004] in which the Labour Court indicated that a preliminary point should be determined separately from other issues arising in a case “where it could lead to considerable savings in both time and expense”. 

Furthermore, I am obliged at all times to consider that which constitutes the most efficient and effective use of the resources of the WRC. 

In considering the submissions made and the evidence adduced by the complainant I must applythe principles set out in Valpeters, and in doing so I am satisfied that these circumstances fall well short of the threshold required to shift the evidential burden. I therefore find that the Complainant has not established primary facts capable of raising an inference of discrimination on race grounds.

I am satisfied that the evidence adduced by the complainant does not disclose facts from which discrimination could reasonably be inferred and accordingly I find that the Complainant has not established a prima facie case of discrimination on the race ground within the meaning of the 1998 Act.

Accordingly, I find that no prima facie case has been established in respect of the allegations of discrimination on the grounds of race, in accordance with section 85A of the Acts. I therefore find that the Respondent did not discriminate against the Complainant.   I declare the claim to be not well-founded.

I am satisfied that the complainant has failed to establish a prima facie case of discrimination on grounds of race.    Accordingly, I declare this claim to be not well founded.