DEC-E2009-003 - Full Case Report

The Equality Tribunal

EMPLOYMENT EQUALITY ACTS 1998 - 2008

EQUALITY OFFICER’S DECISION DEC-E2009-003

PARTIES

Mr A

(Represented by O’Gorman Solicitors)

- V -

A Hotel

(Represented by Denis McSweeney Solicitors)

File reference: EE/2006/225

Date of issue: 26 January 2009

TABLE OF CONTENTS

 1.      DISPUTE

1.1 This dispute concerns a claim by Mr A that he was subjected to discriminatory treatment by A Hotelon the grounds of race in terms of section 6(2) of the Employment Equality Acts, 1998 – 2008 and contrary to section 8 of those Acts.

1.2 The complainant referred a claim of discrimination to the Director of the Equality Tribunal on 4 July 2006 under the Employment Equality Acts 1998 - 2007.  On 15 May, 2008, in accordance with her powers under section 75 of the Acts, the Director then delegated the case to the undersigned Conor Stokes - an Equality Officer - for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts 1998-2008 on which date my investigation commenced.  Submissions were sought and received from the parties.  As required by Section 79(1) and as part of my investigation, I proceeded to hearing on 24 September 2008.  Further submissions on the issue of victimisation were received from the respondent on 9 October 2008.  These were copied to the complainant for comment on or before 2 December 2008, however no further comments/submissions were received.  All written and oral evidence presented to the Tribunal has been taken into consideration when coming to this decision.

2.      SUMMARY OF THE COMPLAINANT'S CASE

2.1 The complainant submitted that he was employed by the respondent hotel as a night porter.  He started work with respondent in February 2006 and his position included the responsibility to admit people to the hotel.

2.2 The complainant submitted that on the night of 14 April 2006, the bar manager had been drinking on the premises.  Later in the evening the bar manager tried to return to the hotel.  The complainant suggested to the bar manager that he should go home and ‘clear his head’.  The complainant submitted that the bar manager responded to his suggestion in an aggressive and racially abusive manner, pushed past him and entered the premises.  The complainant submitted that the bar manager then took off his coat, attempted to start a fight and made reference to setting one of the Limerick gangs onto the complainant.

2.3 The complainant submitted that the following day he made a complaint to his superiors and that nothing was done about it.  The complainant submitted that the bar manager was allowed to continue in his duties and impeded him from performing his tasks satisfactorily, e.g. cleaning the bar area, etc.

2.4 The complainant submitted that after a few months of this behaviour he was forced to leave because the situation had deteriorated to the point where he genuinely feared for his physical safety.

2.5 The complainant submitted that the hotel allowed the bar manager to go unpunished.  The complainant further submitted that the assault was racially motivated and that the hotel failed in their responsibilities by failing to censure the bar manager and provide the complainant with a safe workplace free from racial abuse.

3.      SUMMARY OF THE RESPONDENT’S CASE

3.1 The respondent submitted from its initial investigation, it was satisfied that an incident had occurred between the two employees on 14 April 2006.  During this initial investigation, the bar manager admitted that his behaviour was highly inappropriate and that he had made insulting remarks during the incident.  The respondent indicated that the bar manager was very remorseful at this meeting.

3.2 The respondent submitted that it viewed such behaviour as highly unacceptable and went on to consider the matter for a short time to ensure fairness to both sides. Following consideration of the matter, the respondent was satisfied with the veracity of the complaint and was further satisfied that an informal written warning to the bar manager was necessary and sufficient at that stage.

3.3 The respondent submitted that it issued an informal written warning to the bar manager, on 30 April 2006, outlining the inappropriate nature of his behaviour, instructing him never to repeat such behaviour again and instructing him to apologise to the complainant.  The respondent also emphasised that any further behaviour of that nature would lead to formal disciplinary measures being taken.

3.4 The respondent submitted that it dealt with the complainants complaints as expeditiously and thoroughly as possible and that its decision to issue an informal written warning was a very fair and judicious resolution of the matter.

3.5 The respondent submitted that, in an effort to ventilate and resolve any further grievance between the employees, a meeting was held on 20 July 2006.  This resulted in an agreement of a suitable system of working together and both sides were satisfied with this arrangement.

3.6 The respondent further submitted that there was an incident on 12 May 2006 that involved the complainant threatening a customer.  The respondent outlined that before this incident, it had received two earlier complaints stating that the complainant had been rude to customers.  A number of guests stated that they would not be returning to the hotel.  The respondent submitted that the hotel manageress had expressed serious concern over the complainant’s aggressive manner towards a customer who had complained about him.  Given the aggressive nature of the incident, the respondent took the view that it was necessary to suspend the complainant on full pay, in accordance with company procedures, in order to investigate the incident more thoroughly.

3.7 The respondent submitted that it investigated this matter and ultimately decided that it was necessary to issue the complainant with an informal written warning.  This letter outlined to the complainant that such behaviour was completely unacceptable.  The type of behaviour that was required of him going forward was also outlined.  The respondent submitted that this was also a very fair resolution of the matter.

3.8 The respondent submitted that the complainant was not happy about the complaints that were made by customers and was not happy about being reprimanded in relation to same.  The respondent further submitted that it is those circumstances which are omitted from the complainant’s statement which illuminate the background to his resignation.

4.      FINDINGS AND CONCLUSIONS OF THE EQUALITY OFFICER

4.1    The issue for decision by me is whether or not the respondent Hotel discriminated against Mr. A on grounds of race, in terms of section 6 of the Employment Equality Acts, 1998-2008 and contrary to section 8 of those Acts.

4.2    Section 85A of the Acts sets out the burden of proof which applies to claims of discrimination.  It requires the complainant to establish, in the first instance, facts upon which he can rely in asserting the he suffered discriminatory treatment.  It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised.

4.3 The complainant stated that on 14 April, the bar manager who had previously been drinking on the premises, sought to re-enter the hotel premises.  When the complainant suggested that the bar manager should go home to clear his head, he was subjected to abusive language and threats.  This included language of a racially abusive nature.  The complainant stated that he is an Irish citizen but is not of Irish origin.  I find that the complainant’s evidence was credible, logical and sufficiently detailed so as to establish a prima facie case.  Accordingly the onus to rebut the inference of discrimination shifts to the respondent.

4.4 The respondent submitted that, from its investigations, it was satisfied that the incident of 14 April took place.  At the hearing the bar manager admitted that he may have used the term “refugee” in a pejorative manner, possibly coupled with inappropriate language.  When questioned, the bar manager also admitted that he did threaten to set one of the limerick gangs on the complainant but that this was just a joke.  The bar manager outlined the disciplinary action that followed: the hotel owner spoke to him and outlined that he would not accept any kind of bullying tactics or racial harassment.  The bar manager was given a verbal warning, but was not suspended.  The bar manager was unclear as to whether or not he had received a written warning.

4.5 The respondent stated that it did give the bar manager a written warning and a copy of this was submitted to the Tribunal.  The respondent further stated that as part of the disciplinary process, the bar manager was directed to apologise to the complainant, informed that this behaviour would not be tolerated in the workplace and was also informed that any repeat of this behaviour would have serious consequences for him.

4.6 The respondent stated that the bar manager had apologised on a number of occasions to the complainant and it provided a minute of a meeting that noted the making of a further apology to the complainant dated 20 July 2006.

4.7 Having considered the written and oral submissions of both sides in relation to this matter, I am satisfied that the complainant was subjected to harassment on the basis of race.  The Acts define harassment as “unwanted conduct related to any of the discriminatory grounds … which has the purpose of effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person”. 

4.8 Sections 14A and 15 of the Acts provide defences upon which the employer may rely where harassment has taken place.  The Employment Equality Act 1998 (Code of Practice) (Harassment) Order 2002, gives guidance on how the defence may be relied upon.  The Acts require “employers to act in a preventative and remedial way”.  “It is a defence for the employer to prove that the employer took reasonably practicable steps to prevent – the employee from being harassed … and, so far as any such treatment has occurred, to reverse the effects of it”.  The Code of Practice also states that “in order to rely on this defence employers would need to show that they have comprehensive, accessible, effective policies that focus on prevention and best practice and remedial action and an accessible effective complaints procedure”.

4.9    Having considered the respondent’s evidence and the evidence of a number of witnesses at the hearing, I am satisfied that the respondent took steps to discipline the transgressor, to ensure that the sort of behaviour would not happen again, and accordingly acted in ‘a preventative and remedial way’.  I note that the respondent has policy statement and procedure governing equal opportunities and harassment and I further note that the complainant acted in accordance with the suggested procedure.   Therefore, I consider that the employer is in a position to avail of the defence in this instance.

4.10 In the course of the oral hearing, the issue of victimisation was raised.  It was submitted by the complainant’s legal representative that when the complainant involved his solicitor on 9 May 2006 in his dealings with the respondent, he was suspended (on 16 May 2006) as a result.  Under the Acts, victimisation occurs where an employee is dismissed or otherwise penalised, by their employer as a reaction to the employee having -

(a) complained about discrimination or other conduct which is unlawful under the Acts

(b) taken any proceedings about conduct which is unlawful under the Acts

(c) represented or supported a complainant

(d) been used as a witness or a comparator in equality proceedings

(e) opposed by lawful means conduct which is unlawful under this Employment Equality Acts

(f) indicated an intention to do any of the above.

4.11 The respondent submitted that the complainant’s suspension was unrelated to the incident of 14 April 2006, but rather was a disciplinary measure related to three complaints within a short space of time (the complainant only commenced employment with the respondent in February 2006), the last of which was an incident of 12 May 2006.  In response, the complainant submitted that as both the incident of 14 April and that of 12 May constituted gross misconduct under the Employee handbook, both infringements should have been dealt with in a similar manner.  The respondent submitted that as the incident of 12 May was the third complaint against the complainant, it acted appropriately in the circumstances when it suspended him, with pay, for the duration of the investigation into the incident.  In addition, the respondent noted that in relation to the April incident, the transgressor immediately admitted his transgression and expressed his remorse, thereby obviating the need for a more substantial investigation.  This was not the case in relation to the May incident.  The respondent further submitted that ultimately both incidents led to the issuing of an informal written warning to the respective transgressor.  As the issue of victimisation was only raised during the hearing of this matter, the respondent was allowed to make post-hearing submissions on the issue. The respondent’s submissions on victimisation were forwarded to the complainant for a response, however no responding submissions were received.

4.12 I note that in relation to both incidents, the respondent interpreted its own disciplinary code in a lenient manner and that this resulted in issuing an informal written warning to both transgressors.  Having considered the oral and written information provided before, during and subsequent to the hearing, and having regard to the chronology of events, I am satisfied that the disciplinary action taken against the applicant was not related to the complaint of discrimination surrounding the incident of 12 April 2006 and accordingly does not constitute victimisation under the Acts.

5. DECISION

5.1    Having considered all the written and oral evidence presented to me, I find that although the complainant was subjected to discriminatory treatment on the basis of his race, the respondent employer is entitled to avail of the defence outlined in Acts and the complaint fails.

5.2    Having considered the arguments on the issue of victimisation, I find that the treatment of the complainant by the respondent was not as a reaction to the complainant seeking to oppose by lawful means an act which is unlawful under the Employment Equality Acts and therefore the claim of victimisation fails.

Conor Stokes

Equality Officer

26 January 2009