EMPLOYMENT EQUALITY ACTS 1998 to 2011
Decision DEC - E2012 - 161
PARTIES
A Worker
and
A Restaurant
File Reference: EE/2010/024
Date of Issue: 27th November, 2012
Headnotes: Employment Equality Acts, - Section 6(2)(d), Sexual Orientation - Section 6(2)(g), Disability, Section 6(2)(h), Disability - Section 14A, harassment - Section 77, victimisation - Section 8(1)(b), conditions of employment - Section 101(4)(a), cannot consider dismissal - no prima facie case
1. Dispute
1.1. The complainant referred a complaint under the Acts to the Director of the Equality Tribunal on 19th January 2010, alleging as follows: that the respondent(s) had discriminated against him on the ground of disability, race and sexual orientation, in relation to conditions of employment, pursuant to sections 6(2)(d), 6(2)(g) and 6(2)(h) of the Employment Equality Acts, 1998 to 2008 ("the Acts") and contrary to Section 8(1)(b) of the Acts; that he was harassed by the respondent on the impugned grounds, contrary to Section 14A; and that he was victimised by the respondent contrary to Section 77.
2. Background
2.1. Written submissions were received from both parties. On 4th May, 2012, in accordance with his powers under section 75 of the Acts, the Director delegated the case to me, Gary O'Doherty, 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, on which date my investigation commenced. A hearing of the complaint was held on 3rd July, 2012. In the interests of fair procedures and natural justice, an opportunity was provided to the respondent to respond to certain evidence presented by the complainant at the hearing (see pars. 4.5, 5.14 to 5.16 below). Final correspondence in this respect was received on 27th September, 2012.
2.2. It should be noted that the complainant also made a complaint of dismissal with respect to the impugned grounds. However, as this matter had been dealt with by the Rights Commissioners, I have no jurisdiction to deal with the matter, in accordance with Section 101(4)(a) of the Acts.
3. Summary of the Complainant's case
3.1. The complainant stated that he is gay. He said that the only person in the organisation that he told this to was his colleague, Ms A. He said that he never told his Supervisor, Ms B, that he was gay. He also stated that he was hard of hearing. He said that he did inform Ms B of this fact on the day when he first started working for the respondent in February 2008. He also stated that he was Spanish. He stated that his employment with the respondent concluded on 10th December, 2010.
3.2. The complainant stated that Ms B showed favouritism towards fellow Lithuanian employees and gave examples of how she did so. In particular, he said that he was asked to do difficult tasks which they were never asked to do. The complainant gave an account of an occasion when he said that he wanted to go to pick up payslips from "Head Office", which he did regularly, but Ms B told him that he could not go as they did not like him over there and did not want to speak to him anymore. He said that when he questioned why this was the case, she did not reply. He denied saying anything untoward to anyone in "Head Office".
3.3. The complainant also stated that Ms B never looked at him, didn't call him by his name and was generally very rude to him. He said that she would kick his foot, push him and slap his shoulder and constantly shouted at him. He said that he was subjected to verbal abuse from her, although he said that the nature of the abuse was not related to his sexual orientation, disability or race but was rude. He did state, however, that when he asked her about a job for a friend of his, Ms B told him that she did not need people like him (i.e. of his nationality) and that he was "crazy".
3.4. The complainant referred to a particular occasion when he said that another employee told him to "fuck off" and he reported this to a different supervisor, who said "what can I do?" He said that another Manager, Ms C, took sides against him in this respect. He said that Ms C then said he needed to work and do the job well. He said that she then told him he looked good in pants and went to touch his face.
3.5. Ms A gave evidence to the hearing in which she stated, inter alia, that she witnessed Ms B treating Russian speakers more favourably and gave examples of same. She also said that Ms B said that French, Spanish and Italians were useless and lazy and that she would not employ anyone of that nationality. She also stated that she witnessed Ms B slapping the complainant, using her elbow on him, kicking him in the ankle and yelling at him. She gave examples of where she saw her treat him in a rude manner and called him a "fucking idiot" to herself.
3.6. Ms A also gave a detailed account of instances when she heard staff in the restaurant refer to the complainant as a "fucking faggot" and a "queer". She said that this was never said to the complainant's face but they would say to her to ask her friend the "faggot" to do a particular task. She said it was hard to say when these incidents took place as they were a regular occurrence. She said that she never made a complaint to the respondent herself as the respondent's managers were aware of this but did nothing about it.
3.7. The complainant said that it was obvious that he was treated by the respondent in this way because they knew he was gay. He said he could tell this from their body language and they way they looked at him with disrespect. He said that he was subjected to verbal abuse on an almost daily basis and that his fellow employees were laughing at him.
3.8. The complainant said that he never informed Ms. B that he considered he was being harassed nor did he say it to Head Office either. He said that he did make a complaint of harassment to Ms C directly when he gave her a list of issues which he sought to have addressed. He said that she told him that she would try her best to speak to Ms B about the situation in that context. He said that he waited for her to respond but she never did and he never reported the matter to anyone else. He said he did not follow up when he received no response as he had patience and believed "there is hope". He said that he was never made aware of the respondent's harassment policy and denied receiving any induction training from the respondent in that respect. He agreed that he did tell Ms C that he was happy with the rest of the staff when given an opportunity to transfer and chose not to accept the transfer.
3.9. The complainant said he did not understand what victimisation was.
4. Summary of the Respondent's case
4.1. The respondent is a restaurant chain with a number of outlets, including that in which the complainant worked. It stated that the complainant had mentioned in his application form that he was hard of hearing but no issues arose in the workplace from this. It said it was not aware that he was gay. Ms B, who was present at the hearing, stated that she had to speak more loudly to the complainant because of his bad hearing but she denied that she spoke to him in a rude manner. She stated that she sometimes tapped his leg with her foot to get his attention in that respect. She denied showing favouritism to Russian speakers or giving more difficult jobs to the complainant. She said that she did not recall saying that she did not want people like him working there or anything like that. She said that no-one was allowed to smoke outside break times. She denied that she harassed or verbally abused the complainant.
4.2. Ms C, who was also present at the hearing, stated that she recalled the meeting in question (par. 3.4 above). She said that, as they were leaving, she asked the complainant to tuck his shirt in but she denied touching him. She said that her role in the relevant outlet was liaison between the Restaurant Management Team and the Area Manager. She agreed that she had spoken to the complainant about the matters he raised as outlined at that meeting and she provided to the Tribunal minutes of that meeting and follow-up meetings. She said that she also interviewed other managers in the store in that respect. She said that they told her that Ms B was only making the complainant aware that he was not following procedures in carrying out his work. She said that she was told by one of these other Managers that he "did not want to get into trouble like Ms B" so did not say anything to him about these matters.
4.3. Ms C said that she told the complainant she had sent the findings on and had handed it to Head Office. The report she provided to the Tribunal stated that it was decided that no action should be taken with regards to the matter. She went on to say that she spoke with the complainant later, on 19th November, 2009, and asked him how things were. She said that he replied that everything was super and things between himself and Ms B were fine and he did not wish to transfer to another restaurant.
4.4. The respondent stated that a named person at "Head Office" had asked that the complainant not be allowed to attend head office to collect payslips because he was "somewhat overfamiliar on occasion".
4.5. The respondent stated that it had a handbook which was provided to all employees, including the complainant. It said that this included its harassment policy. It provided a copy to the Tribunal. It said that it was distributed to all staff members, including the complainant, as part of induction training, and was used as a reference guide for almost every staff situation that arose. It stated that no complaint of harassment under those procedures was ever made to it by the complainant.
4.6. The respondent added that the complainant's evidence was unspecific while that given by Ms A was first brought to its attention at the hearing, so it was not in a position to respond and bring the witnesses named. It also referred to Ms A's evidence in general as being "Machiavellian" in nature. In that context, it sought a further hearing in order to bring the witnesses named. In the meantime, it provided statements from these witnesses after the hearing. It denied that the complainant was victimised.
5. Conclusions of the Equality Officer
5.1. Section 85A of the Act sets out the burden of proof which applies to claims of discrimination. It requires the complainant(s) to establish, in the first instance, facts upon which he can rely in asserting that he has 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. Prima facie evidence has been described as 'evidence which in the absence of any credible contradictory evidence by the employer would lead any reasonable person to conclude that discrimination has probably occurred.'
5.2. Section 6(1) of the Acts 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..." Section 6(2)(d) of the Acts defines the discriminatory ground of sexual orientation as follows - "as between any two persons ..... that they are of sexual orientation.." Section 6(2)(h) of the Acts defines the discriminatory ground of race as follows - "as between any two persons ..... that they are of different race, colour, nationality or ethnic or national origins..". Section 6(2)(g) of the Acts defines the discriminatory ground of disability as follows - "as between any two persons ...that one is a person with a disability and the other either is not or is a person with a different disability..".
5.3. Section 14A of the Acts defines harassment as being "any form of unwanted conduct on any of the..grounds...which has the effect of violating a person's dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person". Section 74(2) of the Acts provides that victimisation occurs where ".... adverse treatment of an employee by his..employer occurs as a reaction to..(a) a complaint of discrimination made by an employee to the employer.."
5.4. The issues for me to decide in this case, then, are:
i) whether the complainant was subjected to less favourable treatment in comparison to (an)other person(s) on the ground of sexual orientation, race and/or disability with respect to his conditions of employment
ii) and/or whether he was harassed on any of the impugned grounds
iii) and/or whether he was victimised by the respondent.
In reaching my decision in this case, I have taken into account all of the submissions, both oral and written, made to the Tribunal in the course of its investigation.
Conditions of Employment
5.5. The complainant's case with respect to conditions of employment was that Russian workers were provided with more flexible working conditions by Ms B. Ms B categorically denied this. I prefer the evidence of Ms B in this respect. It is also clear that the reason she told the complainant that he could not collect payslips from "Head Office" is because she was instructed to do so by "Head Office" on foot of a complaint by a member of staff there. This was not related to his race in that context. Therefore, the complainant has failed to establish a prima facie case of discrimination with respect to conditions of employment.
Harassment Claim
Disability
5.6. The complainant's case was primarily one of harassment. In the first instance, he alleged that Ms B harassed him in so far as she kicked him, touched him inappropriately and shouted at him. It is clear that Ms B did regularly touch him, including with her foot, and spoke loudly to him. It is also clear that she did so because he was hard of hearing and the complainant himself had requested that she communicate with him in this manner. I am also satisfied that she did not do so in any excessive way as alleged by the complainant and Ms A. He has failed to establish a prima facie case of harassment in that context.
Race
5.7. The complainant also made a number of allegations that Ms B made comments about his race, in particular that she stated that she would not hire Spanish people. I prefer the evidence of Ms B with respect to all of these allegations and find that no such comments were made. The complainant has failed to establish a prima facie case of harassment in this context also.
Sexual Orientation
5.8. In relation to his claim that he was harassed by fellow employees because of his sexual orientation, the complainant was unable to provide the Tribunal with any clear evidence of this harassment in his own evidence. In that context, he is therefore reliant upon the testimony of his witness, Ms A. By this account, the complainant was subjected to an almost daily litany of insults, directed at the complainant's sexual orientation, by almost every other employee in the outlet in question. These alleged insults were of an extraordinarily abusive and exceptionally intimidating nature, creating an extremely hostile working atmosphere for him.
5.9. I note that, despite this, the complainant continued to work in that atmosphere for two and a half years without complaint. He did raise a number of issues with Ms C. However, in so far as they could be considered to relate to harassment, they referred only to the alleged verbal and physical abuse of him by Ms B and were primarily concerned with his allegation that she was rude. He certainly did not mention to any Manager or Supervisor that he was being harassed because he was gay. Furthermore, he did not, at any stage, avail of the clear and robust harassment policy about which I am satisfied he had been informed.
5.10. Indeed, it can be said that the complaints that he made were investigated by Ms C though not under the harassment policy, rather as part of a general set of grievances. There is some inconsistency between her evidence to the Tribunal and her report on the matter as to how the investigation proceeded once she had taken statements from those she had interviewed. However, it is clear that she did follow-up with the complainant. In that context, not only did he state that he was happy with his working situation at this stage, but he refused a request for a transfer in that context.
5.11. I also note that the complainant did not mention these matters in his complaint form to the Tribunal, nor in his submissions. The first time I became aware of these allegations was when Ms A made them at the hearing. Furthermore, the individuals who are alleged to have carried out this abuse were not made known to the respondent or to me prior to the hearing.
5.12. I am satisfied that any person would find it difficult if not impossible to continue working in the atmosphere described by Ms A. I find it difficult to believe that the complainant could suffer such a litany of homophobic abuse over such a protracted period of time and yet fail to take any action to end this abuse when he was provided with ample opportunity to do so by the respondent. I find it equally difficult to believe that he would not mention anything about this torrent of abuse to the Tribunal when given two opportunities to do so (i.e. in his complaint form and later submissions), particularly given that he no longer worked for the respondent.
5.13. In short, then, the facts outlined in paragraphs 5.9 to 5.12 above undermine the credibility of the evidence of Ms A and of the complainant's claim with respect to harassment on the sexual orientation ground as a whole. In addition, I am satisfied that neither Ms B nor any of the respondent's witnesses who were present at the hearing witnessed such behaviour and the complainant never made them aware that such alleged behaviour was taking place. Indeed, Ms B was clearly unaware that the complainant was gay until he made his claim to the Tribunal. For the avoidance of doubt, then, let me clearly state that I prefer the evidence of the respondent in that respect. Therefore, I am satisfied that the alleged incidents of harassment on the ground of sexual orientation never took place. I find that the complainant has failed to establish a prima facie case of harassment in that context.
5.14. In the context that critical evidence was presented at the hearing about which it was not aware in advance, the respondent requested that it be provided with an opportunity to present rebuttal evidence at a further hearing of the matter. However, as I am finding against the complainant, such a hearing is not necessary.
Other Matters
5.15. In the interests of completeness with respect to harassment, it should finally be said that the complainant's particular allegations against Ms C are properly the subject of a claim of sexual harassment. No such claim has been made to the Tribunal. In any event, I prefer the evidence of Ms C in this respect.
Victimisation
5.16. The complainant did not proffer any evidence that he had been victimised by the respondent. His complaint fails in this respect also.
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:
6.2. I find that the complainant has failed to establish a prima facie case that the respondent discriminated against him in terms of conditions of employment and/or harassed him on the race ground pursuant to section 6(2)(h) of the Acts and contrary to s.8(1)(b) and Section 14A of the Acts respectively.
6.3. I find that the complainant has failed to establish a prima facie case that the respondent discriminated against him in terms of conditions of employment and/or harassed him on the sexual orientation ground pursuant to section 6(2)(d) of the Acts and contrary to s.8(1)(b) and Section 14A of the Acts respectively.
6.4. I find that the complainant has failed to establish a prima facie case that the respondent discriminated against him in terms of conditions of employment and/or harassed him on the disability ground pursuant to section 6(2)(g) of the Acts and contrary to s.8(1)(g) and Section 14A of the Acts respectively.
6.5. I find that the complainant has failed to establish a prima facie case that the respondent victimised him in terms of Section 74(2) of the Acts.
6.6. Consequently, the complainant's case fails.
_____________
Gary O'Doherty
Equality Officer
27th November, 2012