Key Learnings
Where discrimination is found to have occurred in a Company it is not enough for Senior management to claim ignorance of the discrimination and feel that they have ticked the box by having Dignity & Respect at Work and Diversity policies in place. Diversity should be a day-to-day consideration in the workplace. Employees should be encouraged to come forward if they are being subjected to conduct which violates their dignity and creates an intimidating, hostile, degrading, humiliating or offensive environment. Companies should consider Dignity & Respect at Work training for all Employees and in order for People Managers to have a clear understanding of their role in managing these types of concerns.
Background
The Complainant sought redress from the Respondent in circumstances where he claimed his Employer behaved unlawfully and discriminated against him in the course of his employment. The Complainant stated that he was treated less favourably than another person has or would have been treated in a comparable situation on the grounds of his Race and on the grounds of his Age (as detailed in Section 6 of the 1998 Act (as amended)).
Section 6 of the Employment Equality Act 1998 states:-
Sub Section 6 (1) For the purpose of this Act…discrimination shall be taken to occur where…
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(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) …… (the “discriminatory grounds”).
Section 6 (2) As between any 2 persons the discriminatory grounds .. are…
(h) That they are of a different race, colour, nationality or ethnic or national origins (..the ground of race”),
(f) That they are of different ages….(the “age ground”)
In Irish law, section 85A of the Employment Equality Acts places the burden of establishing the primary facts fairly and squarely on the Complainant and the Respondent must prove the contrary. The Adjudicator must determine if the explanation provided by the Respondent is adequate to discharge the burden of proof that the protected characteristic was not a factor in the treatment complained of.
Summary of Complainant’s Case
The Complainant alleges that he was discriminated against on the grounds of his race and age while employed in the Respondent’s food preparation facility. The Complainant brought several witnesses and provided a comprehensive submission and documentary evidence in support of his case.
Summary of Respondent’s Case
The Respondent rejects that there has been any unlawful discrimination and does not accept any contravention of Equality rights as protected by statute. The Respondent also provided a written submission and brought a number of witnesses that were questioned by the Complainant’s representatives.
Findings
The Complainant is from Poland and came to Ireland in 2006. He has been with the Respondent since 2017 and works on a minimum wage. The Complainant worked at a General Operative level and in the dispatch section of the Respondent facility. The Respondent is in food production and prepares foods for major retail and supermarket clients. The Complainant says his problems started when he got a new Line Supervisor. The Complainant said that this Line Supervisor humiliated him and intimidated him. He described the Complainant as an “old communist” and a stupid or blind communist and often described him as a “Polish Alcoholic” – an offensive stereotyping of the Polish race. The Complainant says that describing him as a communist is particularly disparaging in the context of Polish self-identification and history.
The Complainant accepts that he never raised any of the issues regarding the treatment by this Line Manager with anybody higher up the Management chain. He understood that one or two of his colleagues might have said something to a Manager on his behalf.
The Complainant says he and the Line Manager clashed in the workplace on the 12th of June 2020 as the Complainant was having difficulty performing his job. The Complainant says the Line Manager used offensive language in the usual way leaving him demeaned and upset. The Complainant’s health deteriorated significantly and was brought to the Hospital with a suspected cardiac incident requiring a surgical bypass. The Complainant feels very strongly that the Line Manager and the workplace are responsible for this health issue.
The Respondent’s evidence is that there was no issue on the production line and that the Complainant never raised an issue. The Respondent claims that all appropriate policies were implemented and accessible in the workplace. The Respondent presented paperwork which showed that the Complainant got a copy of a Group Staff Handbook in Polish. The Handbook does reference the Dignity in the workplace policy, as well as the policy for non-discrimination. Also available to the Complainant was the more regularly utilised Grievance policy.
A Dispatch Operator, to whom the Line Manager in question is answerable to, denies any approach was made to him concerning the treatment of the Complainant. He stated that the Line Manager is an excellent Team leader and that any employment issues raised with him would have been sent straight to HR. The Line Manager gave evidence too, denying calling the Complainant a communist or that he acted in a discriminatory way.
The Respondent claims the Complainant never brought any of these issues to the attention of the Company and maintains they have zero tolerance for discriminatory behaviour and given its diverse workforce. The Company position is that the Complainant was treated no differently based on his age or race than any of his other colleagues.
Conclusions
The WRC Adjudicator accepted that the Complainant was subjected to an ongoing campaign of unacceptable behaviour by his Line Manager and stated that it was racist and unacceptable that the Complainant was described as a lazy drunken Polish person. The Adjudicator also accepted the Complainant’s grievance against the Respondent Company for not better protecting him against this regime of subjugation. The Adjudicator believed that Senior Management in the Respondent Company may well have been unaware of the difficulties being experienced by the Complainant. However, Management cannot rely on the fearful silence instilled in the Complainant as a defence for its inaction. There was no sense that the Company was being proactive in ensuring that there was no discrimination in the workplace. While there was a diversity policy in the Company handbook there was little evidence to suggest that this was a day-to-day consideration in this diverse workplace. In making this finding the Adjudicator refered to Section 15 of the Employment Equality Act which sets out the Employer’s Liability for such acts.
The Complainant did not give the Respondent Company an opportunity to rectify the situation while he was still in the workplace. There is nothing to suggest that the Complainant would not have been listened to, had he raised the issue of the racial and ageist with Senior Management. The Adjudicator did not accept that the Complainant’s medical complaints were caused by the workplace and any remunerative loss is not attributable to the workplace.
Decision
The Complainant was discriminated against in the course of his employment and was awarded the sum of €8,000.00 compensation.
If your Organisation needs advice, support, or guidance in relation to compliance requirements when managing workplace conflict, Dignity at Work, Diversity and Inclusion Policies/Training or indeed any HR issues, please contact Adare Human Resource Management call (01) 561 3594 or email info@adarehrm.ie.
Adare Human Resource Management is a team of expert-led Employment Law, Industrial Relations and best practice Human Resource Management consultants.