Race – Because Your Employment Matters

“Racial discrimination may occur in a passive way by excluding people socially or by being indifferent to their views and experiences. It may take the form of prejudice and stereotyping of different groups in our community or workplace; in name calling, taunting or insults; or in actively and directly excluding or discriminating against people from services or opportunities. In its most serious manifestation, racial discrimination is demonstrated in behaviors and activities that embody hate, abuse and violence”

Every day we are seeing more and more incidents of racial discrimination in the papers, on the TV, in the streets, at our local café and of course in work. Treating differently because of the colour of their skin, their accent or because of their different culture is unacceptable and you should not tolerate it.

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WHAT THE LAW SAYS (THE INTERESTING BIT)

The Law provides that you should not be treated less favourably than someone else simply because of your race. So, in essence that means that you should be treated in exactly the same way as any Irish national working in a comparable position to you in the workplace. Any less favourable treatment could be discriminatory and could lead to you being paid compensation.

Getting paid more than you;
Getting better hours than you;
Being asked to do tasks which are easier or you are asked to all of the difficult jobs;
OR
If you are being subjected to more scrutiny and unfair criticism;
If you are being verbally abused, intimidated, or humiliated because of your race;
Forced to leave your job because of the conduct of your employer towards you or his failure to address your complaints of discrimination.

WE WON’T LET THEM GET AWAY WITH
TREATING YOU SO SHODDILY

Our Client DM is Romanian. He was subjected to repeated jokes and ridicule by his line manager because of where he was from. DM’s manager repeatedly called him gypsy and even put him on the roster under the name of gypsy. DM repeatedly asked him to stop and even went to his manager’s manager with the aim of preventing this. He was told to get over it and that it was only a bit of fun banter.

This is the typical response we see from employers in these situations. But it doesn’t take account of how DM was feeling as a result of these racial slurs. The embarrassment he felt, how he felt worthless as a result of this abuse and how eventually how because he was so distraught by this treatment, why he resigned his employment. DM came to us and we took on his case. We contacted his employer and made a complaint to the workplace Relations Commission on his behalf. We attended the hearing and made his case and the adjudicator agreed with us.

This type of treatment in the Irish workplace of 2017 is completely unacceptable. The Adjudicator awarded DM €17,500 compensation.

“Thanks guys, you have restored my faith in the Irish! I can’t tell you what this means, not just for the money, it’s not about the money, but for being able to stand up to them and show them that this is not right, you can’t treat people like this.”

DM,, Kilkenny

WHAT SHOULD YOU EXPECT?

DM didn’t take this lying down and neither should you.

If you are being treated less favourably in work, you should not suffer in silence. Ideally your employer should have a policy to deal with these things and that’s usually the best place to start. You should taise the issue either through the Bullying and Harassment policy, Anti-Discrimination policy or the Grievance procedure. Often these don’t exist internally in an organization and if that’s the case you should raise the matter (preferably in writing if it is serious) with a suitable level of management. They should in normal circumstances resolve the issue. If that doesn’t work you may have no alternative but to proceed with an application to the WRC. To do that you lodge a complaint online at workplacerelations.ie. They will reply in due course and outline the process but you will need to do a written submission to them outlining what your complaints are and why you say they are discriminatory.

Of course, this is what we do every day for employees just like you and so if you would like to find out more about how we could help you with making your claim please do not hesitate to contact us for a free no obligation consultation.

WE CAN HELP YOU RESOLVE THIS

We act on behalf of employees like you everyday. In fact in the last twelve months we have secured upwards of €1 million euro in awards for employees who have been unfairly treated at work. We are familiar with all of the big firms acting on behalf of the big blue-chip employers and we’re not afraid of any of them. New clients often come in to us and say that their employer or former employer will through money at defending the case and they’ll hire the best lawyers in the business and we welcome that. The best will be familiar with us as we are with them. They will know that we know our way around. That we didn’t come down in the last shower and that we aren’t going away. They will know that we will fight our Client’s case and won’t sell them out and they will respect us and our reputation. They will know that we spend most of our time acting in this area and that we are extremely familiar with the Workplace Relations Commission and the Labour Court and that we have fought and won cases that our colleagues would not take.

We have represented all types of client in all types of industry. We have taken on the very small guy and the giant multi-national in all sectors including web, IT, legal, manufacturing, food, textiles and many many more. No job is too big or too small.

Many of our customers are also fearful of facing their former employer or bully across a room. That is understandable and something that we are always conscious of. We are uniquely aware of the difficulties our Clients face in this regard. Many of our Clients have suffered from severe stress, anxiety and even depression as a result of their treatment at work and so they find it very difficult to face their abuser in the WRC or the Labour Court. We are with them every step of the way and we will ensure that they get the chance to have their say and that win, lose or draw that they feel vindicated. Their employer cannot abuse them, we will be there to protect them, their legal representatives won’t know any more about the law than we do and they certainly won’t have spent more time than us in the WRC, EAT, Equality Tribunal or Labour Courts. We are one of the most prolific firms in the country in the employment sector.

With us you will get a service level second to none and representation which will ensure that you are never caught unawares. With us you will have the best chance of achieving the vindication you acquire and compensation for the treatment you have suffered.

WHAT THE LAW TECHNICALLY SAYS (THE BORING BIT)

Section 6(2) of the Employment Equality Acts provides that as between any two persons, the discriminatory grounds are inter-alia, they are of different race, colour, nationality or ethnic or national origins.
The Labour court in the case of Campbell Catering Ltd and Rasaq Det EED048 has stated:

It is clear that many non-national workers encounter special difficulties in employment arising from a lack of knowledge concerning statutory and contractual employment rights together with differences of language and culture

In bringing a complaint a complainant must, firstly establish facts from which it can be presumed that he was subjected to discriminatory treatment on the grounds of his race and it is only when he was done that to the satisfaction of the adjudication officer that the burden shifts to the employer to prove otherwise. There must be a difference in treatment and a difference in Race for there to be evidence of discrimination.

What must be decided by an Equality Officer or the Labour Court is whether a Complainant was less favourably treated in relation to his conditions of employment and whether that was because of his race.

The burden of proof provides that should a complainant establish facts by which it may be presumed that he suffered discrimination, it is for the respondent to prove the contrary.

“In relation to the comparator, it is not sufficient, in my view, to ignore actual comparator workers and assert that a hypothetical Irish employee would not have been treated in the same manner by the respondent”

The complainant must first establish facts from which discrimination may be inferred. They must be established as facts on credible evidence. Mere speculation, assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn.

Since the decision in Dekker the protection afforded to pregnant women in employment has been significantly bolstered throughout both case law and legislation.

In Melbury Developments V Valpeters it was submitted that the complainant was treated badly by the respondent and the court was invited to infer that he was so treated because of his race. Such an inference could only be drawn with evidence of some weight from which could be concluded that persons of a different race or nationality were or would be treated more favourably. The Court also confirmed that an approach requiring the respondent to prove that others were treated similarly would amount to placing the entire probative burden on the spot.

Where there are actual comparators, the real as opposed to a hypothetical comparator is required. A Court cannot and should not find in favour of the Complainant on the basis of mere speculation.

In Toker developments Ltd V Edgars Grods EDA10 the mere fact of a difference in status (in this case race) and the difference in treatment is in itself insufficient to shift the probative burden of proof and therefore there is a requirement to demonstrate actual discrimination “it would clearly be impermissible for the court to reach conclusions of facts based upon mere supposition or speculation”. This was also confirmed in J.Ryan Haulage V Kostas Avizinis and Madarassy V Nomura International plc 2007 IRLR 246.

In order to succeed in this contention, a complainant must be able to produce some significant evidence and not mere supposition to allow the court to draw an inference that persons of different race or nationality were or would be treated more favourably.

The Labour court has indicated previously that the failure to apply the appropriate terms and conditions of employment as stipulated by the REA is by no means confined to non-national workers. In the Toker case the court held;

“it is settled law that in cases of equal treatment a hypothetical comparator can be relied upon but only where there is some evidential basis upon which it could be concluded that such comparator would have been treated more favourably in the circumstances of the particular case.”

The mere fact of a different status in this case race and a difference in treatment is in itself insufficient to shift the probative burden.

The Labour court in the case of the Southern Health Board vs Dr Teresa Mitchell considered the extent of the evidential burden which the claimant must discharge before a prima facie case of discrimination on grounds of sex can be made out.

It stated that the claimant must:

“establish facts from which it can 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 was no infringement of the principle of equal treatment.”

The Labour Court went on to hold that a prima facie case of discrimination is established if the Complainant succeeds in discharging that evidential burden. If the complainant succeeds the Respondent must prove that he or she was not discriminated against on those grounds.

Subsequently, the Labour court stated in relation to the burden of proof in cases brought on the race and religion grounds that it is now accepted practice of the Court in all cases involved in discrimination the probative burden will shift to the Respondent in circumstances where the complainant establishes a prima facie case of discrimination.

The test normally used to determine when and in what circumstances the burden of proof should the respondent is formulated in the case of Mitchell Vs Southern Health Board 2001 ELR 201.

This test provides that the Complainant must first prove the primary facts upon which they rely in asserting discrimination.

If those facts are proved and they are regarded by the Court as of sufficient significance to raise an inference of discrimination, the burden of proving the absence of discrimination shifts to the respondent.

This test is based on the wording of the European Communities (Burden of Proof in Gender Discrimination Cases) Regulations 2001. These regulations provide that the probative burden shifts when the Complainant establishes the facts from which discrimination may be presumed.

The wording used in the regulations which is derived from direct 97/80 EC (the Burden of Proof Directive) is now replicated in Article 8 of Council Directive 2000/43 on equal treatment between persons irrespective of race or ethnic origin.

Following the decision in 58 Named Complainants Vs Good Concrete Ltd there is a requirement to furnish a foreign national with a Health and Safety statement. This is particularly so where a Claimant is working in an inherently dangerous business. There is in any case a statutory requirement to furnish individuals with health and safety documentation.

In the case of a foreign national who would not be conversant with Irish health and safety law, it is now contended that there is an obligation to provide an employee with a health and safety statement and in failing to provide same to him in a language likely to be understood by him amounts to discrimination.

In relation to the obligation to ensure all health and safety instructions were communicated international language of the applicant, the court has recently confirmed in Clare Civil Engineering V Ostojic and Others that while health and safety instructions of his important, the court can be satisfied that such instruction was generally imparted to all workers for the well-being on site and that where a complainant would have reasonable experience from previous work practices whether in Ireland or elsewhere then they will have reasonably attended to their obligations.

TAKE ACTION NOW:

To find out more about how you might be effected by discrimination in the workplace please contact us
051 841 641 or 1890 88 90 90 or email info@employment-matters.ie.

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