THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2011
Decision - DEC-E2011-228
PARTIES
Keith Reynolds
(represented by Hayes Solicitors)
and
HMS Host Ireland Limited
(represented by Purdy Fitzgerald Solicitors)
File Reference: EE/2008/412
Date of Issue: 6th December, 2011
Headnotes: Employment Equality Acts, 1998 to 2008 - discriminatory treatment - race - conditions of employment - discriminatory dismissal - victimisation - failure to establish a prima facie case
1. Dispute
1.1 This case concerns a complaint by Mr. Keith Reynolds, who is an Irish national, that he was discriminated against by HMS Host Ireland Limited on the ground of race contrary to section 6(2)(h) of the Employment Equality Acts, 1998 to 2008 in relation to his conditions of employment and discriminatory dismissal. The complainant also claims that he was subjected to harassment contrary to section 14A of the Acts and to victimisation contrary to section 74(2) of the Acts. The complainant also claimed he is entitled to the same rate of pay as that paid to a named comparator in accordance with section 19 of the Employment Equality Acts, 1998 to 2008 and that the respondent discriminated against him on the gender ground.
2. Background
2.1 The complainant referred a complaint under the Employment Equality Acts, 1998 to 2008 to the Director of the Equality Tribunal on 26 June, 2008. In accordance with his powers under section 75 of the Employment Equality Acts, the Director delegated the case on 9 March, 2011 to me, Enda Murphy, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions under Part VII of the Employment Equality Acts, 1998 to 2008. This is the date I commenced my investigation. A written submission was received from the complainant on 16 February, 2009 and a written submission was received from the respondent on 7 April, 2009. The parties were notified on 31 May, 2011 that an Initial Hearing was scheduled to take place on 21 September, 2011 in relation to the claim for equal remuneration. The complainant's representative informed the Tribunal on 20 September, 2011 that the complainant did not wish to pursue the claim for equal remuneration and accordingly, this element of his claim was withdrawn. As required by section 79(1) of the Acts and as part of my investigation in relation to the other elements of the complainant's claim, I proceeded to hearing on 18 November, 2011.
3. Summary of the Complainant's case
3.1 The complainant, who is an Irish national, stated that he was employed by the respondent from 28 May, 2007 until 28 January, 2008 when he was dismissed from his employment. The complainant submitted that he was promoted from the position of Assistant Store Manger to Store Manager on 27 July, 2007. He stated that there was also two other Store Mangers employed by the respondent during his period of employment (one of whom was an Irish national and the other a Spanish national). The complainant was based in Shannon Airport and in his role as Store Manager he had responsibility for the restaurant, café and the Londis shop on the 'Airside' wing of the airport. His duties included responsibility for staffing, tills, stocks, ordering, compilation of staffing rosters and opening and closing the premises under his supervision.
3.2 The complainant submitted that he was subjected to discriminatory treatment on 28 January, 2008 when he was summarily dismissed from his employment without notice. It was submitted that on 27 January, 2008, while the complainant was off duty, an incident occurred in the workplace whereby the Store Manager on duty, Mr. A, a Spanish national, was unable to open a premises as he did not have his own keys in his possession. The complainant submitted that he was off duty at the time of the missing keys incident and that Mr. A was on duty and as such was responsible for keeping his keys on the premises in his possession; however, he failed to do so. Notwithstanding the fact that Mr. A mislaid his keys and was therefore unable to open the premises i.e. the Londis Shop, the respondent illogically and in a discriminatory manner dismissed the complainant while he was off duty because he was not available or scheduled to work at 5 a.m. to open the premises, while taking no disciplinary action against Mr. A at the time. The complainant submitted that Mr. A was not penalised in any way for his error in forgetting his keys; however, by contrast the complainant who was not even on duty received the ultimate sanction of summary dismissal from his employment without warning and in breach of fair procedures and natural and constitutional justice. The complainant submitted that he was treated in a less favourable and discriminatory manner that Mr. A on the basis of nationality and race.
3.3 The complainant denied the respondent's contention that he was dismissed as a result of ongoing issues of poor performance or that the incident which occurred on 27 January, 2008 was the culmination of a series of issues that had arisen in relation to his work performance. The complainant also denies that the respondent had conducted a number of meetings with him prior to his dismissal in order to address issues surrounding his performance or that he had been issued with a written warning by the General Manager on 23 November, 2007. The complainant claims that he had requested support from management on a number of occasions prior to his dismissal in relation to the discharge of his duties but that his requests in this regard were totally ignored. The complainant stated that he was not afforded any opportunity to put forward a defence in relation to the incident on 27 January, 2008 which led to his dismissal. The complainant claims that he was subjected to summary dismissal on 28 January, 2008 and that he was not afforded fair procedures in terms of the manner in which his dismissal was effected by the respondent.
3.4 The complainant also claims that he was subjected to victimisation by the respondent contrary to the provisions of section 74(2) of the Employment Equality Acts. The complainant claims that his legal representative wrote to the respondent on 12 February, 2008 informing the company that the complainant was unjustifiably dismissed from his position as Store Manager. This letter called on the company to re-instate the complainant to his position and to provide written confirmation that he would not be further discriminated or victimised on any of the nine grounds of the equality legislation. The complainant also claimed that it was clearly set out in this letter that the complainant wished to instigate an internal appeals procedure in relation to his dismissal. The complainant submitted that in correspondence which it subsequently received from the respondent's legal representatives that efforts were made to deter him from making a complaint to the Equality Tribunal by threatening him with the respondent's costs at the Equality Tribunal. The complainant also claims that he was prevented from appealing his dismissal in accordance with the respondent's own grievance procedures on account of the issues raised in his legal representative's letter dated 12 February, 2011.
3.5 The complainant also claims that he was subjected to harassment contrary to the provisions of section 14A of the Acts during his period of employment with the respondent. The complainant submitted that due to his background in catering he often facilitated the respondent by working as a Head Chef in the kitchen. There were a number of Polish nationals employed in the kitchen, all of whom spoke fluent English. The complainant submitted that while he was in the kitchen these employees refused to speak English or carry out his instructions thereby undermining his position. The complainant raised this grievance with the respondent as he felt that the refusal of the Polish workers to speak English constituted a health and safety hazard in the kitchen. The complainant submitted that although signs were erected that English must be spoken in the kitchen, nonetheless, these were not adhered to. The complainant submitted that he felt degraded by the actions of the Polish workers and that his conditions of work, in which he was excluded from participation in workplace camaraderie by fellow employees, were not desirable or satisfactory in this regard.
4. Summary of the Respondent's case
4.1 The respondent company was established in 2005 and it specialises in food and beverage operations and it operates out of Shannon, Cork and Dublin Airports. The respondent submitted that the complainant was employed as an Assistant Store Manager on 27 May, 2008 at Shannon Airport and was promoted to the position of Store Manager on 27 July, 2008. The respondent submitted that it employed two other Store Managers at its operations in Shannon Airport, one of Irish origin and the other of Spanish origin (Mr. A). The complainant was the Store Manager responsible for the bars and restaurants on the 'landside' wing of the airport and the Londis store was under the control of the complainant. The respondent submitted that the Londis store was due to open at 5 a.m. on 27 January, 2008, however as the complainant did not attend for work, Mr. A, the Store Manager for the bars and restaurant on the 'airside' wing of the airport was forced to deal with the situation by breaking a window into the office of the complainant to obtain the keys.
4.2 The respondent submitted that the Londis store was opened some 2 hours late and despite several telephone calls to the complainant, he was not contactable until later that day. The respondent submitted that the complainant was not summarily dismissed on 28 January, 2008 and that the issue which occurred on 27 January, 2008 in relation to him not appearing for work, as rostered, and causing the late opening of the Londis store was the last in a series of poor performance related events. The respondent submitted that it was forced to deal with the complainant by way of performance improvement plans on several occasions and that he was issued with a written warning in relation to his performance on 23 November, 2008. The complainant was also required to attend a meeting on 7 January, 2008 with the General Manager and HR Manager where issues surrounding his poor performance were addressed. The respondent submitted that when the complainant was dismissed on 28 January, 2008, he was made fully aware of the circumstances which had brought about his dismissal and he was afforded every opportunity to answer the case put before him. The respondent submitted that the events surrounding the complainant's dismissal had no connection with Mr. A (who was a Spanish national) and that his dismissal was not in any way associated with the complainant's nationality. The respondent submitted that the complainant was dismissed from his employment purely for performance related issues.
4.3 The respondent denies the complainant's contention that he was denied the right of appeal in relation to his dismissal or that he was subjected to victimisation as alleged. The respondent submitted that the complainant contacted Ms. B, Company Director, following his dismissal and sought to inform her of his dismissal. Ms. B affirmed the complainant's right to an appeal mechanism and referred him to the Company Handbook in order that he follow the appeals procedure set out therein. The respondent submitted that correspondence was received from the complainant's trade union representative dated 5 February, 2008 seeking to apply the appeals procedure on his behalf. The respondent wrote to the complainant's trade union representative on 8 February, 2008 and agreed to the appeals procedure and affirmed the complainant's right to representation in the matter. A further letter was furnished to the complainant's trade union representative on 11 February, 2008 enquiring if the appeal procedure was to be utilised.
4.4 The respondent submitted that the letter it received from the complainant's legal representative on 12 February, 2008 post dated the letter which it had sent to his trade union representative agreeing to the appeals procedure. The respondent submitted that it was the complainant's solicitors who rejected taking part in the appeal process and that under correspondence dated 12 February, 2008 they indicated an intention to take an action before the Equality Tribunal by reference to discrimination. The respondent submitted that the letter dated 14 February, 2008 from its legal representatives merely responded to same and that this can in no manner be seen as a withdrawal of the appeal procedure. The respondent submitted that the letter dated 12 February, 2008 from the complainant's solicitor showed that he had no intention of participating in the appeal procedure already agreed upon. The respondent submitted that its HR Manager forwarded a final payslip and P45 to the complainant on 15 February, 2008 due to the fact that it appeared quite plainly that the complainant was not instigating the appeal procedure.
4.5 The respondent also denies that the complainant was subjected to harassment within the meaning of section 14A of the Acts in terms of his interaction with the workers of Polish origin who were employed in the kitchen. The respondent submitted that the complainant did not make any complaint about this alleged harassment during his period of employment despite the fact that the procedure for making such a complaint was clearly outlined in the Company's Employee Handbook. The respondent also submitted that it was unaware of any alleged signage in the kitchen area stating that English must be spoken and it claims that the company were not responsible for the placing of any such signage in the kitchen area.
5. Conclusions of the Equality Officer
5.1 Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination in relation to him. If he succeeds in doing so, then, and only then, is it for the respondent to prove the contrary. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of "sufficient significance" before a prima facie case is established and the burden of proof shifts to the respondent. In deciding on this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the complainant. It is only where such a prima facie case has been established that the burden of proving there was no infringement of the principle of equal treatment passes to the respondent.
5.2 Section 6(1) of the Employment Equality Acts, 1998 to 2008 provides that discrimination shall be taken to occur where "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).....". Section 6(2)(h) of the Acts defines the discriminatory ground of race as follows - "as between any 2 persons, ... that they are of different race, colour, nationality or national origins".
Discriminatory Dismissal
5.3 The first element of the complainant's claim that I must decide concerns the claim that he was subjected to a discriminatory dismissal on 28 January, 2008 when he was summarily dismissed from his employment. The complainant claims that whilst off duty, he was unreasonably and unlawfully held responsible for the failure of another Store Manager on duty, of a different nationality, to adhere to his work responsibility in relation to keys. The complainant claims that, as an Irish national, he was subjected to unlawful discrimination in comparison to Mr. A, a Spanish national, resulting in his contract of employment being terminated whereas Mr. A was not subjected to any disciplinary action in relation to the incident. The respondent accepts that the complainant's employment was terminated on 28 January, 2008 but it denies that his dismissal was in any way connected to his race or that Mr. A had any connection with the decision to terminate his contract of employment. The respondent claims that the complainant was dismissed due to a succession of poor performance issues which culminated with the incident that occurred on 27 January, 2008 whereby the complainant had failed to attend for work which resulted in the Londis store being opened some two hours late.
5.4 In considering this issue, I have taken note of the decision of the Labour Court in the case of Xtratherm Ltd -v- Eamonn Croghan where it was held that "In the instant case the complainant relies on the difference in treatment of which he complains and the difference in status and nationality vis-à-vis his comparators to raise an inference of unlawful discrimination. There is authority for the proposition that the mere fact of a difference in status (in this case race and/or non-membership of the Traveller community) and a difference in treatment is in itself insufficient to shift the probative burden (see the Judgement of the Court of Appeal for England and Wales to that effect in Mandarassy v Nomura International plc, [2007] IRLR 246) ..... It is a notorious fact that domestic equality legislation and the Directives, upon which it is based, were enacted to protect groups within society who were historically subjected to discriminatory treatment. Thus, where a member of the Traveller community, or a person who is part of an ethnic minority, is treated less favourably than a member of the settled community or a person of Irish nationality, a degree of nexus may readily be inferred between the status of the person and the less favourable treatment. However, where, as in the instant case, the converse is contended for no such inference can automatically be drawn. In such cases the Court must look for some discernible connection between the impugned treatment and the status or nationality of the complainant"
5.5 The complainant has claimed that he was treated less favourably than Mr. A (a Spanish national) on the grounds of race in terms of the sanction of dismissal which was imposed upon him following the incident that occurred on 27 January, 2008 whereby the Londis shop was opened some two hours late. Based on the evidence adduced in the present case, I do not accept the complainant's contention that his dismissal was effected purely on the basis of the incident that occurred on that date. I am satisfied that the respondent had raised a number of performance related issues with the complainant prior to the incident that occurred on 27 January, 2008. I accept the respondent's evidence that the decision to dismiss the complainant was taken following the incident which occurred on that date and that this incident was the culmination of a number of performance related issues that had arisen during the complainant's period of employment.
5.6 Having regard to the evidence adduced, I am not satisfied that Mr. A (i.e. the named comparator), was in a comparable situation to the complainant in terms of either the incident that occurred on 27 January, 2008 and/or the ultimate decision that was taken by the respondent to terminate the complainant's employment. In this regard, I note that the complainant has not adduced any evidence to suggest that the respondent had occasion to raise any performance related issues with Mr. A during his respective period of employment. In the circumstances, I am satisfied it was merely coincidental that Mr. A was of a different nationality to the complainant and I have not been presented with any evidence from which I could reasonably conclude that the complainant was treated less favourably than Mr. A on the grounds of race or nationality in terms of his dismissal. Having regard to the foregoing, I am satisfied that the complainant was dismissed purely as a result of performance related issues and he has not presented any evidence to suggest that his nationality was a factor which was in any way attributable to his dismissal.
5.7 The complainant has also argued that the respondent treated him in a discriminatory manner by failing to apply any proper procedures in relation to his dismissal. However, the issue for decision in this claim is whether or not the complainant was discriminated against on the grounds of race in relation to dismissal. This Tribunal has no jurisdiction to decide on the unfairness or otherwise of the dismissal; the complainant needs to prove that it was connected to his race. As I have already stated above, I am satisfied that the complainant's dismissal was not connected in any way to his nationality or race. In the circumstances, I find that the complainant has failed to establish a prima facie case of discrimination on the grounds of his nationality or race contrary to the Employment Equality Acts.
Victimisation
5.8 The next element of the complainant's claim that I must consider relates to the allegation that he was subjected to victimisation by the respondent. Victimisation is defined at section 74(2) of the Acts as "For the purposes of this Part victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to -
(a) a complaint of discrimination made by the employee to the employer,
(b) any proceedings by a complainant,
(c) an employee having represented or otherwise supported a complainant,
(d) the work of an employee having been compared with that of another employee for any of the purposes of this Act or any enactment repealed by this Act,
(e) an employee having been a witness is any proceedings under this Act or the Equal Status Act, 2000 or any such repealed enactment,
(f) an employee having opposed by lawful means an act which is unlawful under this Acts or the said Act of 2000 or which was unlawful under any such repealed enactment, or
(g) an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs".
5.9 The Labour Court has held in the case of the Department of Foreign Affairs -v- Patricia Cullen that "This definition is expressed in terms of there being both a cause and an effect in the sense that there must be a detrimental effect on the Complainant which is caused by him or her having undertaken a protected act of a type referred to at paragraphs (a) to (g) of subsection (2). If either the cause or the effect is missing there can be no finding of victimization within the statutory meaning". In the present case, the "cause and the effect" which is purported to represent the act of victimisation relates to the complainant's claim that the respondent denied him the right to appeal his dismissal in accordance with normal company procedures after his legal representative had written a letter (dated 12 February, 2008) to it, on his behalf, requesting that he be reinstated in his position and that he would not be further discriminated or victimised on any of the nine grounds in the Equality legislation.
5.10 In considering this issue, I note that the complainant had informed the respondent on 5 February, 2008 (through his Trade Union representative) that he wished to instigate an appeal in relation to his dismissal. The respondent subsequently replied to the complainant's Trade Union representative on 11 February, 2008 setting out its willingness to begin the appeals procedure. In the circumstances, I am satisfied that the respondent had already acceded to the complainant's request for an appeal at that juncture. I note that there was a subsequent exchange of correspondence between the respective legal representatives of both the complainant and respondent in relation to the complainant's dismissal. I have considered the contents of the letters issued by the respondent's legal representative (i.e. the letters dated 14 February, 2008 and 28 February, 2008) and I cannot accept the complainant's contention that he was denied the right to appeal his dismissal on foot of the communications contained therein. Accordingly, I find that the complainant has failed to establish a prima facie case of victimisation contrary to section 74(2) of the Employment Equality Acts.
Harassment
5.11 The final element of the complainant's claim that I must consider concerns the allegation that he was subjected to harassment contrary to section 14A of the Employment Equality Acts. "Harassment" is defined in section 14A(7)(a) of the Acts as "any form of conduct related to any of the discriminatory grounds being conduct which ... has the purpose or effect of violating a person's dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person". Section 14A(7)(b) further states that "such conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material". The complainant submitted that there were a number of Polish nationals employed in the kitchen, all of whom spoke fluent English and he claims that while he was in the kitchen these employees refused to speak English or carry out his instructions thereby undermining his position. The complainant further claims that he brought this issue to the attention of the respondent's management but that no action was taken to address the matter. The respondent denies that the complainant raised this issue during his period of employment and it submitted that he failed to make any complaint about the alleged harassment in accordance with the normal grievance procedures that were provided for in the respondent's Company Employee Handbook.
5.12 Having regard to the evidence adduced, I have found the respondent's evidence in relation to this issue to be more credible and I am not satisfied that the complainant has adduced any evidence from which I could reasonably conclude that he was subjected to harassment within the meaning of the Acts by the respondent. Accordingly, I find that the complainant has failed to establish a prima facie case of harassment on the grounds of his race contrary to the Employment Equality Acts.
6. Decision
6.1 Having investigated the above complaint, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts, 1998 to 2008. I find that:
(i) the respondent did not discriminate against the complainant on the ground of race contrary to section 6(2)(h) of the Acts in terms of discriminatory dismissal.
(ii) the respondent did not subject the complainant to victimisation contrary to section 74(2) of the Acts.
(iii) the respondent did not subject the complainant to harassment contrary to section 14A of the Acts.
Accordingly, I find in favour of the respondent in this case.
______________
Enda Murphy
Equality Officer
6th December, 2011