THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2011
Decision DEC - E2012- 106
PARTIES
A Hotel Worker
-V-
A Hotel
File Reference: EE/2010/176
Date of Issue: 21/08/2012
Keywords
Employment Equality Acts 1998-2008 - direct discrimination - Section 6(1), less favourable treatment, 6(2)(g) - disability ground, Section 8(1)(b) - conditions of employment, Section 16 - reasonable accommodation, Section 8(6) - Dismissal, Section 85A - Burden of Proof, prima facie case.
1. Dispute
This dispute involves a claim by a complainant that she was discriminated against by the above named respondent on the disability ground, pursuant to section 6(1) & 6(2) (g) and in terms of section 8 of the Employment Equality Acts, 1998 and 2011 in relation to her conditions of employment and dismissal and failure to provide her with reasonable accommodation in terms of section 16 of the Acts. In accordance with his powers under section 75 of the Employment Equality Acts, 1998-2011 the Director delegated the case on the 18th June, 2012 to me, Marian Duffy, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of those Acts This is the date I commenced my investigation. Written submissions were received from the complainant 25th April 2012 and from the respondent on the 6th June 2012. A hearing on the complaint was held on the 20th July 2012 and the final correspondence from the parties was received on the 27th of July 2012.
2 Summary of the Complainant's case
2.1 The complainant has a disability known as Aspergers Syndrome and was employed by the respondent as a part-time employee in September 2009. She said that she worked in the bar and restaurant attending customers. She did not tell the employer of her disability when she was employed because it does not impact on her ability to carry out her work. After about four weeks she had a meeting with the managers and they were happy with her progress. She said that her working conditions changed after she told some of the staff and her supervisor about her disability. She explained to them that it did not affect her work but she has difficulties in socialising. She said the supervisor told her that all the managers were informed of her condition. After this she was treated differently from other staff members particularly by one duty manager. She said that she was given more tasks to do than other staff, like room service work in addition to working in the restaurant and she was also required to help out at functions and work in the bar. She said that other staff members were given just one area of the bar/restaurant. She said that she was employed part-time but was often asked to work longer hours and on one occasion her hours were 4pm to 9pm and when she attempted to leave the manager gave out to her and made her stay until closing time. She said that she did not receive proper training other than being shown what to do by other staff. She was not shown how to open wine and the manager gave out to her when she did not know how to open one. He also gave out to her for when she left the jug of water on a table in the manner she was shown by a staff member. He also gave out to her about the way she carried the plates and the number she carried. He told her she was not carrying enough plates when she was carrying two but she was not shown how to carry any more she was expected to know it. She said he also gave out to her about the way she spoke saying it was not proper English. On another occasion she had three days off and another staff member had two separate days off and she asked her if she would swap it was agreed with the supervisor. The manager gave out to her for switching even though she was only doing the other staff member a favour.
2.2 On the 30th of October 2010 she received a call from HR Manager saying that the business was slow and that there were no hours for her and she was being let go. A few days later when she was returning her uniform the two staff members employed after her were still working there. She contacted the HR manager who told her that the duty manager had said that he had tried to cater for her disability but it was not working out. She said that as a result her confidence was low and she felt that her disability was holding her back from getting a job like other young people of her age. She asked the HR manager to give her a letter to say that she was let go because of her disability so that she could get disability allowance. She got a letter stating that she was not able to follow instructions. She served the questionnaire on the respondent seeking the reasons for her dismissal and she was informed it was due to the fact that she did not carry out the duties required in the position. The complainant submitted that she has been given three different reasons for her dismissal (i) lack of hours (ii) her disability and (iii) her inability to carry out her duties. She believes she was let go because of her disability. She was asked to sign a contract of employment on the 20th of October 2010 and it was signed by Human Resources on the 27th of October a few days before she was dismissed. The complainant submits that if she was let go because of her performance she would not have been asked to sign a contract so close to being let go. She does not accept that she was not performing her work in a satisfactory manner. She stated that she was not a trained waitress in hotel service but once she was shown how to do something she had no difficulty after that. Said that she has worked in a coffee shop and she continues to work at weekends in a contract catering firm but the type of work she does is very different than serving in a hotel. She said that she was never warned about her performance. She also states that she does not accept that there was a downturn in business because shortly after she was dismissed the respondent was advertising jobs for waitresses on a jobs website.
3. Respondents case
3.1 The respondent denies that the complainant was discriminated against and dismissed for reasons connected with her disability. In the respondent's submission they stated that the hotel suffered a downturn as a result of the over-supply in the hospitality market from 2008 to 2010 and several measures had to be taken to ensure that the business would continue to trade. Shortly before the complainant was employed all the staff salaries were reduced by 10%. The complainant commenced employment as a the Food & Beverage Assistant on the 17th of September 2009 and she worked with the company for 6 weeks. This was a difficult financial period in the hotel and several positions were made redundant. The complainant was interviewed for the position and based on her previous experience in food and beverage service she was offered employment. It was submitted that the role was not a complicated one and the complainant could easily have performed the role of Food and Beverage Assistant as the volumes of people being served in the hotel would be considerably less than she was accustomed to serving with the contract catering company which served at matches and other events at Croke Park. At no stage during the recruitment or during the course of her employment did the complainant inform the company of her disability or any other difficulty which would affect her work performance. Throughout her six weeks employment she was shown the service standards required by the respondent but she did not improve and she continued to get the basics wrong.
3.2 Each team member is responsible for a section in the bar or restaurant but there were complaints about the complainants performance. It was decided to give the complainant some basic tasks to assist other team members so she could get these tasks right before moving on to be given full responsibility for a section of the restaurant or bar. Her tasks included running food from the kitchen to the tables, polishing cutlery in the kitchen and taking room service orders. It was submitted that room service would not have imposed extra pressure on the complainant. On each shift one person carries the portable room service telephone and that person takes the order and sends it to the kitchen and delivers it to the room. As the business was relatively quiet and there was not enough hours for everybody it was decided to terminate one of the more recent recruits. The complainant was selected because her performance, she was not performing her duties to the required standard compared with another employee who had commenced after her. It was submitted that the complainant had claimed experience on her CV and during the interview which did not follow through on her performance.
3.3 Ms A. Human Resource Officer stated that she interviewed the complainant together with the Operations Manager and she was taken on the 17th of September 2009 on a casual contract of employment as a food and beverage assistant. The complainant like all other employees was taken on a six month probationary period. She said that during the course of her employment she received three complaints from two of the managers in the area that the complainant was not performing her duties to the required standard. Ms. A said that every person employed has to learn some aspects of the job but the complainant's performance was not up to speed for the level of business carried during service. She said tasks which were easy to perform the complainant did not perform them at the level that she would have been expected to perform them. She denied that the complainant was given more tasks than the other employees. She said that she would have advised the manager to follow procedures and warn the complainant but she does not know if he did so. She said that one of the managers asked her to telephone the complainant and to inform her that he had no hours for her over the weekend of the 31st of October and that her employment was being terminated. She said that she told the complainant that her employment was terminated because it was not working out. She denies telling the complainant sometime the following week that the manager said that they had tried to cater for her disability but it was not working out. She said that she did not know that the complainant had a disability until sometime after the dismissal when the complainant asked her to write a letter for the Department of Social Protection to state this was the reason she was let go. She said that she refused to write such a letter but she did provide her with a letter to say she was unable to meet the demands of the role and that she had difficulties following instructions accurately and did not sufficiently organise or prioritise tasks. Ms. A disputes the complainant's contention that the issue of non performance was only raised as a reason for the dismissal in January 2010. She said that she may not have made it clear in her telephone call of the 30th October 2009 to the complainant but she believes she raised it with her. She said that a letter of dismissal is not issued on every occasion and the complainant did not get the reasons for her dismissal until she requested the letter for the Department of Social Protection.
4. Conclusions of the Equality Officer
4.1 In this case, I must consider the complainant's claim that the respondent directly discriminated and dismissed her on the disability ground in terms of section 6(1)(a) and 6(2)(g) of the Employment Equality Acts 1998 and 2011, in contravention of section 8 of the Acts. In making my Decision in this case, I have taken into account all of the evidence, written and oral, submitted to me by the complainant.
It is a matter for the complainant in the first instant to establish a prima facie case of discriminatory treatment. It requires the complainant to establish facts from which it can be inferred that she was discriminated against on the above mentioned grounds. It is only when he has discharged this burden to the satisfaction of an Equality Officer that the burden shifts to the respondent to rebut the inference of discrimination raised.
4.2 The Labour Court in the case of The Southern Health Board v. Dr. Teresa Mitchell DEE 011, 15th February 2001 considered the extent of the evidential burden which a complainant 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 may 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 she was not discriminated against on grounds of their sex. If the complainant does not discharge the evidential burden, the claim cannot succeed.
Section 85A. of the Employment Equality Acts 1998-2008 sets out the burden of proof as follows:
(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 her or her, it is for the
respondent to prove the contrary.
4.3 In considering Section 85A, as amended, the Labour Court stated in the case of Cork City Council v Kieran McCarthy, Determination No. EDA0821, that:
"Section 85A of the Act, as amended now provides for the allocation of the probative burden as between the parties. It provides, in effect, that where facts are established by or on behalf of a Complainant from which discrimination can be inferred it shall be for the Respondent to prove the absence of discrimination.
The Labour Court went on to say in that case:
"The type and range of facts which may be relied upon by a complainant can vary significantly from case to case. The law provides that the probative burden shifts where a complainant proves facts from which it may be presumed that there has been direct or indirect discrimination. The language used indicates that where the primary facts alleged are proved it remains for the Court to decide if the inference or presumption contended for can properly be drawn from those facts. This entails a consideration of the range of conclusions which may be appropriately drawn to explain a particular set of facts which are proved in evidence. At the initial stage the complainant is merely seeking to establish a prima facie case. Hence, it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inferences which can be drawn from those facts."
4.4 I am now going to consider the evidence in the light of the above and to determine whether the complainant has established a prima facie case. Section 6(1) of the Employment Equality Acts 1998 and 2004 provides:
"..... discrimination shall be taken to occur -
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) (in this Act referred to as the 'discriminatory grounds')"
Section 6(2)(g) provides that as between any two persons, the discriminatory grounds are, inter alia:
(g) that one is a person with a disability and the other either is not or is a person with a different disability (in this Act referred to as "the disability ground"),
4.5 The matter I have to consider is the claim of discriminatory dismissal on the disability ground. The definition of disability in Section 2(1) of the Acts is as follows:
''disability'' means --
(a) the total or partial absence of a person's bodily or mental
functions, including the absence of a part of a person's
body,
(b) the presence in the body of organisms causing, or likely to
cause, chronic disease or illness,
(c) the malfunction, malformation or disfigurement of a part of
a person's body,
(d) a condition or malfunction which results in a person learning
differently from a person without the condition or
malfunction, or
(e) a condition, illness or disease which affects a person's
thought processes, perception of reality, emotions or
judgement or which results in disturbed behaviour,
and shall be taken to include a disability which exists at present, or
which previously existed but no longer exists, or which may exist in
the future or which is imputed to a person;
I am satisfied from the medical evidence that the complainant has a disability within the meaning of the Acts. The next matter I have to consider is whether the complainant was discriminated in relation to her conditions of employment and dismissed for reasons connected with her disability or if it was related to her performance.
4.6 The complainant believes that she was treated differently and given more work and ultimately dismissed after she informed the respondent's staff about her disability. She accepts that she did not inform the employer of her disability at the time she was employed because the disability does not affect her ability to carry out her work. She said that her supervisor and managers learned of her disability a number of weeks after she started work and after this she was treated differently. She submits her disability was one of the reasons she was given for the dismissal after she queried with HR the reason why staff taken on after her were retained. The respondent's case is that the complainant was not performing to the standard required compared with other person who commenced after her. The business was quiet and the respondent did not have enough hours for everyone and the complainant was selected over the other employee who commenced after her because of her poor performance.
4.7 I note that the complainant's case is that she was not an experienced waitress and she understood that she would be trained for the position which did not happen. The complainant said that while she works at weekends for a contract catering company serving food at events, such as matches and concerts and also she worked in a coffee shop attached to a pub which served food, but she had no experience of working in a hotel restaurant and she never claimed to have such waitress experience. She does not accept that her performance was poor or that she could not follow instructions and prioritise and organise work. She believes if this was the case she would not have been promoted to a supervisor in her part-time work with the contract catering company where she still works. She also said that when she was shown how to do something she carried the task out satisfactorily. She submits she was given more duties than other staff and some of the other staff would not collect their orders from the kitchen and it was left to her to bring out the food to the customers.
4.8 I note that the contract of employment specified a six month probationary period after which a decision to retain the employee would be taken. It is also clear from the disciplinary procedures that the complainant was not warned about her work performance in accordance with the disciplinary procedures. The first stage of the procedures provides for counselling in the event of an employee not performing and a written record of that conversation is held on file and stage 2 provides for a recorded verbal warning which is put on file. There is no record on the complainant's file that these procedures were followed and the manager who instructed Ms A to dismiss the complainant did not give evidence. I note that the complainant stated that about 3 to 4 weeks into her employment she had a meeting with the managers and she was informed that she was progressing well. I also note that the complainant was asked to sign a contract of employment about ten days before she was dismissed and it was only signed by Ms. A three days before the dismissal. Ms. A said that nothing significant should be read into that, it was routine task to ask employees to sign contracts. However Ms. A said in evidence she had a number of complaints about the complainant's performance and I am of the opinion that if the complainant's performance was so poor and that her dismissal was being contemplated by the manager for this reason she would not have been asked to sign a contract of employment or at the very least it would have provided an opportunity by HR to inform the complainant that there were complaints about her performance. This did not happen. On balance I found the complainant's evidence more convincing in relation to her performance particularly given that the respondent did not provide any witness evidence to contradict the complainant's version of events.
4.9 In relation to the claim that the business was quiet and that the respondent needed to let someone go, the complainant stated that the hotel was advertising vacancies the week after she was let go. I note that the respondent recruited two new staff as food and beverage assistants in the month following the complainant's dismissal. Therefore I cannot accept that this was the reason for her dismissal.
4.10 The next matter I have to consider is whether the complainant's disability influenced the decision to dismiss her. I found the evidence of the complainant convincing and I am satisfied that the supervisor and managers were aware of her disability. Having considered all the evidence and having regard to the above findings, I am of the view on the balance of probabilities that the complainant has established facts from which an inference of discriminatory treatment on the disability ground has been raised. I find therefore the complainant has established a prima facie case of discriminatory dismissal and the burden of proof has shifted to the respondent.
4.11 In relation to the rebuttal, Ms. A gave evidence at the hearing that she did not make the decision to dismiss the complainant and neither the manager who made the decision nor any of the other managers or the supervisor gave evidence. In considering this case I note that in A Government Department v An Employee ADE/05/19, the Labour Court noted that Article 2 of the EU Directive 2000/78 establishing a general framework for equal treatment in employment and occupations provides that the principle of equal treatment means that there shall be no discrimination whatsoever on the grounds of disability. The Labour Court went on to say it was well settled that in interpreting national law a Court or Tribunal must do so in light of the wording and purpose of a Directive so as to achieve the result envisaged by that Directive as set out in Marleasing S.A. v La Commercial Internacional de Malimentacion S.A. ECR 4135. In my opinion this means that the treatment of the complainant and the termination of her employment cannot have been influenced by her disability.
4.12 In the case of Portroe Stevedores v Nevins [2005] 16 E.L.R. 282 this approach was also followed in the above mentioned case. The Labour Court, in considering the evidence necessary to rebut the inference of discrimination followed the decision of the Employment Appeals Tribunal for England and Wales, in Barton v Investec Henderson Crostwaite Securities Ltd [2003] IRLM 332. and stated:
"..... since the facts necessary to prove an explanation would usually be in the possession of the respondent, a tribunal should normally expect cogent evidence to discharge that burden. That decision is of persuasive authority and the Court has adopted a similar approach in the instant case".
In the above mentioned case the Labour Court also stated "that the requirement to establish that there was no discrimination whatsoever means that the Court must be alert to the possibility that a person with a disability may suffer discrimination not because they suffer from a disability per se, but they are perceived, because of their disability, to be less capable or less dependable than a person without a disability. The Court must always be alert to the possibility of unconscious or inadvertent discrimination and mere denial of a discriminatory motive, in the absence of independent corroboration, must be approached with caution."
4.13 In following this approach, I note that there was no corroboration of the respondent's version of events given that no witnesses attended and the HR manager who gave evidence did not make the decision to dismiss and I have rejected the reasons given for the dismissal as stated above. Consequently, I am satisfied that the respondent has failed to rebut the prima face case raised by the complainant. I find that the respondent terminated the complainant's employment because of her disability and this amounts to a discriminatory dismissal on the disability ground under the Employment Equality Acts. Therefore the claim succeeds.
4.14 In relation to the claim under Section 16 that the respondent failed to provide appropriate measures to accommodate the complainant's disability, I am not upholding this complaint given that the complainant in evidence stated that the disability does not affect her ability to carry our her work.
5. Decision
5.1 Having investigated the above complaints, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts, 1998 to 2011. I find that:
(i) the respondent discriminated against the complainant on the disability ground pursuant to sections 6(1) and 6(2)(h) of the Acts in terms of her dismissal and contrary to section 8 of the Acts;
(ii) the respondent did not fail to provide "appropriate measures" in accordance with Section 16 of the Acts.
5.2 Section 82-(i)(c) of the Act provides that I can make an order for the effects of the discrimination. The maximum award I can make under Section 82(4) is two years pay. The complainant's average pay over the 6 week period was around €270 per week. The EU Directives require sanctions for a breach of the principle of equal treatment to be effective, dissuasive and proportionate. I consider that an award in the amount of €7,000 is appropriate in the circumstances.
5.3 I therefore, in accordance with my powers under section 82 of the Employment Equality Acts, order the respondent to pay the complainant €7,000 in compensation for the effects of the discriminatory dismissal. This figure represents compensation for the infringement of her rights under equality legislation in relation to discrimination and does not include any element relating to remuneration, and therefore it is not taxable.
____________________
Marian Duffy
Equality Officer
21st August 2012