THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision - DEC-E2013-045
PARTIES
Two Complainants
(Represented by Rachel O'Flynn B.L. instructed by Colm Burke & Co., Solicitors)
V
A Restaurant
(Represented by Peninsula Business Services (Ireland) Limited)
File Reference: EE/2008/868 & 869
Date of Issue: 20 May 2013
Headnotes: : Employment Equality Acts, 1998 to 2008 sections 4, 6, 8, 14A, 16, 74 (2)- discriminatory treatment and harassment - gender, marital status, sexual orientation, race -access, conditions of employment - discriminatory dismissal - direct and indirect discrimination - discrimination by association- sexual harassment - victimisation -- prima facie case.
1 Dispute
1.1 This dispute involves a claim by complainant A(hereinafter "the first-named complainant") and Complainant B (hereinafter "the second-named complainant"), (together "the complainants"), that they were directly and indirectly discriminated against by a restaurant (hereinafter "the respondent") on grounds of gender, marital status, sexual orientation and race within the meaning of sections 6 (2) (a) , (b), (d) and (h) of the Employment Equality Acts, 1998 - 2008 (hereinafter "the Acts") in relation to access to employment, promotion or re-grading, training and conditions of employment and otherwise contrary to sections 8 of the Acts.
1.2 The first-named complainant also alleges discrimination on the ground of disability (i.e. lupus) within the meaning of section 6 (2) (g) and contrary to section 8 of the Acts.
1.3 The complainants also claim that they have been subject to harassment on the grounds of gender, marital status, sexual orientation and race and sexual harassment in the course of their employment with the respondent within the meaning of section 14A of the Acts.
1.4 The complainants allege they have been subject to victimisation within the meaning of section 74 (2) of the Acts.
1.5 The first named complainant alleges constructive discriminatory dismissal and the second-named complainant alleges discriminatory dismissal.
1.6 The complainants also allege that they have been subject to discrimination by association, within the meaning of section 6 (1) (b) (i) and (ii) of the Acts.
2 Background
2.1 The complainants referred their complaints under the Acts to the Director of the Equality Tribunal which were received on 15 December 2008. The complaints were not received in the Tribunal within the six months time limit set out in the Acts. The complainants applied for an extension of time for referral of the complaints. On 4 November 2009 it was directed that an extension of time to twelve months for the purpose of referring a complaint to the Tribunal be given in these cases.
2.2 A written submission was received from the complainants on 30 September 2010. A written submission was received from the respondent on 21 February 2012. As required by section 79(1) of the Acts and as part of my investigation, I held a hearing of this complaint on 15 March 2012. At the hearing I sought further documentation from the complainants and respondents and correspondence with the parties continued until May 2012.
3 Summary of complainants' case
3.1 The first-named complainant is a Hungarian who speaks English fluently. The second-named complainant is a Slovakian of Hungarian national origin who speaks Hungarian but has very poor English. The complainants are a lesbian couple. The first-named complainant commenced employment as a waitress with the respondent on Wednesday, 21 May 2008. Her employment terminated on Saturday, 7 June 2008. The second-named complainant commenced employment as a kitchen porter with the respondent on Saturday, 24 May 2008. Her employment terminated on Wednesday, 4 June 2008.
3.2 The complainants claim that the respondent did not furnish the complainants with any of the following documentation:
Statement of terms of employment or contract of employment
Grievance and disciplinary procedure
Bullying and harassment policy
3.3 They claim that this failure on the part of the respondent, while not contrary to the Terms of Employment (Information) Act put them, as foreigners, at a particular disadvantage in defending their rights compared to Irish people and therefore indirectly discriminated against them on the race ground.
3.4 The complainants were not furnished with pay-slips or a P45. The respondent did not register the second-named complainant for tax with the Revenue Commissioners.
3.5 The first-named complainant called into the respondent restaurant chain to seek work. She was recruited to work as a waitress at a wage of €8.65 per hour. She started work at 1pm on 21 May 2008 in the branch. Her duties were waiting tables, taking orders, clearing tables and taking cash. She claims she was not given any training and started working immediately. Her shift began at 1pm. The restaurant closed at 11 pm, after which the staff cleaned up. The staff members were paid for the time it took to finish cleaning.
3.6 On her first day at work the first-named complainant asked K, the branch manager whether there were any vacancies as her girlfriend, the second-named complainant, was looking for work. The first-named respondent explained that her girlfriend had very little English and would have great difficulty dealing with the public. She suggested that a kitchen position might be more suitable for her as she would have less contact with the public. The second-named complainant commenced employment on 24 May 2008 as a kitchen porter. She states that on her first day the other kitchen staff appeared to be annoyed that she had been taken on as they feared there were not sufficient hours to go around. She was paid €8.65 per hour. In spite of her poor English she was called upon from time to time to wait on customers because it was busy. This she found extremely stressful because of her lack of training and poor language skills.
3.7 The complainants state that they were the only females employed on their shift. The staffing arrangements were:
Management
Ml, Area Manager, Irish
K, Branch Manager, Irish
Two supervisors:
R South Asian
H South Asian
Kitchen staff
N, Head chef, Hungarian
S, short order cook, Hungarian
P, short order cook, Slovakian
C, Chinese short order cook
T, kitchen porter, Hungarian
Second-named complainant, Slovakian, Hungarian speaker
There was one male waiter, Chinese.
3.8 The complainants both claim that they were not given adequate training during employment.
3.9 The complainants experienced difficulty when the staff found out that they were a couple and in a relationship with each other. The complainants do not know how the staff came to know of their relationship, although the complainants may have been observed walking home after work hand-in-hand. On 25 May 2008, S asked the first-named complainant if they were a couple. She answered that they were and asked him not to persist in questioning them. Nevertheless on another occasion S asked the first-named complainant if they (complainants) had a bath together and could he join in; did they use vibrators; who was the man in their relationship and how did they do 'it'. The co-workers continued to question them about their relationship in spite of the first-named complainant asking them to stop. They claim that R their supervisor put the complainants under pressure once he became aware of their sexuality and they were given extra work and more unpleasant work than the other employees.
3.10 The first-named complainant felt that R unfairly burdened her with work and that her male waiter colleague was not so burdened. She was always refused permission to leave early while her male colleague, who was a poor timekeeper was never told off for being late. On one occasion the first-named complainant was working on the till and there were 5/10 customers waiting to be served at table. R, the supervisor pushed her out from behind the till and said "get out there you are not good enough to do that". She asked R why he treated her like this and he said that she was a good worker and he wanted to push her to improve. She felt bullied by him. He raised his voice to her on numerous occasions and spoke abruptly to her. As things escalated she told him she would have to leave and he didn't answer her.
3.11 Members of the kitchen staff went on cigarette breaks as often as they wished without seeking the supervisor's permission but the complainants had to ask the supervisor's permission and when they did they would only be allowed one or two breaks per shift. The complainants pointed out to the supervisor that the other kitchen staff members were being treated more favourably in the matter. When the supervisor told the other kitchen staff that they must ask permission before going on breaks the other staff members turned on the complainants and called them (in Hungarian) words translated by the Tribunal interpreter as "c**ts, f***ing c**ts, lesbians and bitches. The interpreter explained that in Hungarian the word for bitch is considered extremely offensive.
3.12 One of the supervisors, R, appeared to be attracted to the second-named complainant. He was always flirting with her which made her feel uncomfortable as a result. He offered to give her English language lessons. She felt frightened by the offer because she did not wish to be alone with him. He asked her once to cook him a Hungarian dinner. She felt very uncomfortable and was shaking. She told her partner, the first-named complainant, who said to R that he was welcome for dinner but just if both complainants were at home. R laughed and walked away. On a number of occasions R touched and/or rubbed the second-named complainant on the shoulder which made her feel uncomfortable. The second-named complainant said that she did not say to R to stop but he ought to have picked up her negative feelings from her body language. As the complainants would be walking past him at work he would say: "Whoa, whoa, are you really lesbians I can't believe it" or "Are you really a couple" or "Maybe you are lesbians because you have not found the right man in your lives".
3.13 The complainants never got tips unlike other members of staff. They claim that in one night alone €500 was taken in tips but they received nothing. One member of staff told the first-named complainant that he made €200 in tips in one week.
The first-named complainant was reprimanded by a visiting female manager, in front of K, the restaurant manager, for wearing a black bra under a white shirt. The first-named respondent explained that she would change as she had white underwear with her in her bag. She was told not to do so as it was way too busy but to remember next time. The first-named complainant felt very embarrassed and humiliated by the incident.
3.14 On 6th June 2008 when the first-named complainant reported for work a colleague N told her that the second-named complainant was no longer working. The first complainant rang Ml, the area manager to enquire. He informed her that they could not continue to employ the second-named complainant as there were not enough hours but that maybe he could find some hours for her in another branch. The first-named complainant was asked by him to relay this to the second-named complainant and to tell her that she was not required to work that day. The next day when the first-named complainant arrived for work there was a new woman in the washing-up area. The first-named complainant asked her what her position was and she answered "I'm a kitchen porter", the post occupied by the second-named complainant. The new person had limited English. The first-named complainant believes the new person was Hungarian. The second-named complainant denies that she was offered and initially accepted hours in another branch.
3.15 On 7 June 2008 the first-named arrived to work and was asked by R in an accusatory tone if she knew anything about €200 which was missing from the till since the previous day. The first-named complainant asked him was he accusing her of taking it and he did not reply. She was annoyed and angry about this. Also on that day R confronted her about a party of customers who, he said, had left without paying. He said it was her fault. She knew they had not paid her but she was sure they had paid another member of staff. She followed the customers out and asked whether they had paid. The customers produced a receipt and she relayed this to R. She requested an apology which she didn't get. She called the restaurant manager K and told him she was leaving as she had had enough.
3.16 The first-named complainant tried to contact Ml, the area manager and K, the restaurant manager, but was unsuccessful in so doing. The first-named complainant was reprimanded by R for making phone calls on the job. The first-named complainant suffers from lupus and was feeling very bad and was dizzy. She felt she couldn't stand on her legs and that she was going to fall. She made R aware of her medical condition and the necessity to avoid stress. She did not tell the restaurant manager about it. She again tried to call K, the restaurant manager, who answered the phone and she informed him of what happened, that she couldn't stand it and that she wanted to leave. K replied "ok leave".
3.17 Consequent upon the foregoing and the conduct of the respondent the first-named complainant felt she had no option but to leave her employment.
4 Summary of respondent's case.
4.1 The respondent denies that the two complainants were the only women employed in that branch of the restaurant chain and subsequent to the hearing presented written records purporting to show that other women were employed in the branch. The respondent admits that they did not furnish the complainants with a statement of their terms of employment or a contract of employment but since the complainants worked for less than two months there was no breach of the Terms of Employment Information Act 1994. The respondent also admits that the complainants did not receive a copy of the grievance procedure but it denied that the respondent did not deploy, operate or adhere to the principles of the code of practice in this regard.
4.2 The respondent denies that the complainants were not furnished with pay-slips or a P45, and that it did not register the second-named complainant for tax with the Revenue Commissioners.
4.3 The restaurant manager, K, gave oral evidence at the hearing. He said that he is openly gay and had never experienced difficulties in his employment on account of his homosexuality. When the first-named complainant asked him whether there were vacancies as her girlfriend (the second-named complainant) was looking for work, he understood that she was referring to her partner. The fact that the respondent agreed to recruit the second-named complainant assuming her to be the same-sex partner of the first-named complainant shows that the respondent did not discriminate on the ground of sexual orientation in access to employment. There is nothing in the complainants' case which supports claims of discrimination on the grounds of marital status or race. Nor were the management made aware of the first-named respondent's medical condition so they could not have discriminated against her on the ground of disability. Insofar as she made her immediate supervisor aware of her disability she did not present any medical report and did not seek reasonable accommodation. She was not unfavourably treated on account of her disability.
4.4 The first-named complainant was given limited training because she claimed she had considerable experience as a waitress. The second-named complainant was hired as a kitchen porter who would do waitressing as needed. She made no objection to this arrangement at any stage. The respondent has no evidence that other staff were annoyed when she was taken on.
4.5 The respondent says that R is no longer in their employ and has returned home. He was not available to respond to the allegations against him. It is therefore impossible to test the veracity of the statements about his conduct. No complaints whatsoever were made about him during the course of his employment and he was remembered as a quiet and fairly shy individual without a great command of English. They doubt if R would have understood when the first-named complainant told him that she was suffering from lupus. In any event he did not inform management.
4.6 Staff became aware of the complainants' relationship because they never hid the fact that they were a couple and would hold hands on their breaks and sometimes kiss and cuddle. As regards the derogatory comments alleged to have been made by S and R and other staff, they are no longer employed by the respondent and both have left the country. The veracity of the complaints against them cannot be tested. The respondent pointed out that the mobile phone numbers of the restaurant manager and the area manager were written up beside the till and while in the short time the complainants worked there was not time to make them aware of the grievance procedures it is reasonable to assume that they would have contacted either of the managers to complain if they had suffered the harassment they allege.
As regards tips, the respondent's policy was to give 70 per cent to floor staff and 30 per cent to kitchen staff. On average they worked out at 65 cent per hour worked. Trainees would not get tips for the first few weeks.
4.7 As regards the "black bra" incident, K was present and gave evidence that the female supervisor, Z, spoke to the first-named complainant about her wearing a black bra under a white shirt and said that she didn't say it in a manner that would embarrass or humiliate her as alleged. K recalled that Z and the first-named complainant laughed and joked about the matter.
4.8 As regards the dispute about customers not paying, K recalled receiving a phone call from the first-named complainant and as a result he spoke to R. R said he noticed that customers at one of her tables appeared to walk out without paying. He then asked her if they had paid and she said yes they did. R noticed the docket which customers are required to bring to the till to pay was still on the table so he again asked the first-named complainant if she was sure they had paid and she said yes they must have. R then went and checked the last few orders that had been paid on the till and that bill wasn't among them. He then spoke to the first-named complainant again and told her that the policy was that if people left without paying it would be taken from the daily tips. At this point the first-named complainant shouted at R saying that it wasn't her fault and what could she do if they had already left. K recalls receiving a call from the first-named complainant and that she told him she was leaving. K asked her to wait until the following day as he was at a meal with his family and he needed to speak to both persons. She said "no way, I'm going home now". Under duress he told her he would be there in half an hour but she hung up on him. When he went in R was on his own. He tried ringing the first-named complainant but she would not answer him. He informed Ml, the area manager who agreed to contact her.
4.9 The second-named complainant was told by Ml the area manager that he did not have enough hours at that branch but he offered to move her to another branch where she could get more hours and she initially agreed. Later the first-named complainant spoke to Ml and said she didn't want the second-named complainant working in the other branch on her own because her English was not good, but Ml told her he didn't have hours for the second-named complainant in the original branch. The first-named complainant then asked to be moved with her partner to the other branch but was informed that he did not have work for them both there.
4.10 The respondent denies that the second-named complainant was replaced, although it is possible that someone from another branch was present in the kitchen to be trained and was spoken to by the first-named complainant.
5 Conclusions
5.1 The complainants claim that they were discriminated against on grounds of gender, marital status, sexual orientation and race within the meaning of sections 6 (2) (a), (b), (d) and (h) of the Employment Equality Acts, 1998 - 2008 (hereinafter "the Acts") in relation to access to employment, promotion or re-grading, training and conditions of employment and otherwise contrary to sections 8 of the Acts.
5.2 The first-named complainant also alleges discrimination on the ground of disability (i.e. lupus) within the meaning of section 6 (2) (g) and contrary to section 8 of the Acts.
5.3 The complainants also claim that they have been subject to harassment on the grounds of gender, marital status, sexual orientation and race and sexual harassment in the course of their employment with the respondent within the meaning of section 14A of the Acts.
5.4 The complainants allege they have been subject to victimisation within the meaning of section 74 (2) of the Acts.
5.5 The first-named complainant alleges constructive discriminatory dismissal and the second-named complainant alleges discriminatory dismissal.
5.6 The complainants also allege that they have been subject to discrimination by association, within the meaning of section 6 (b) (i) and (ii) of the Acts.
5.7 Section 6 provides that for the purposes of the Acts and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where 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') which --
(i) exists,
(ii) existed but no longer exists,
(iii) may exist in the future, or
(iv) is imputed to the person concerned,
(b) a person who is associated with another person --
(i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and
(ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination.
(2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are --
(a) that one is a woman and the other is a man (in this Act referred to as "the gender ground"),
(b) that they are of different marital status (in this Act referred to as "the marital status ground"),
...
(d) that they are of different sexual orientation (in this Act referred to as "the sexual orientation ground"),
...
(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"),
(h) that they are of different race, colour, nationality or ethnic or national origins (in this Act referred to as "the ground of race"),
Section 14A of the Acts provides:
14A. -- (1) For the purposes of this Act, where --
(a) an employee (in this section referred to as 'the victim') is harassed or sexually harassed either at a place where the employee is employed (in this section referred to as 'the workplace') or otherwise in the course of his or her employment by a person who is --
(i) employed at that place or by the same employer
...
the harassment or sexual harassment constitutes discrimination by the victim's employer in relation to the victim's conditions of employment.
(2) If harassment or sexual harassment of the victim by a person other than his or her employer would, but for this subsection, be regarded as discrimination by the employer under subsection (1), it is a defence for the employer to prove that the employer took such steps as are reasonably practicable --
(a) in a case where subsection (1)(a) applies ... to prevent the person from harassing or sexually harassing the victim or any class of persons which includes the victim.
...
14 A (7) (a) In this section --
(i) references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds, and
(ii) references to sexual harassment are to any form of unwanted verbal, non-verbal or physical conduct of a sexual nature, being conduct which in either case has the purpose or effect of violating a person's dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.
(b) Without prejudice to the generality of paragraph (a), such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material.
5.8 According to section 22 of the Acts, indirect discrimination occurs where an apparently neutral provision puts persons of a particular characteristic covered by the discriminatory grounds at a particular disadvantage compared with other employees of their employer..., unless the provision is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.
5.9 In coming to my conclusions I have taken into consideration all the evidence, both written and oral presented by the parties.
5.10 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 her. If she 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 complainants. In a Determination the Labour Court1 , whilst examining the circumstances in which the probative burden of proof operates held as follows -
"Section 85A of the Acts provides for the allocation of the probative burden in cases within its ambit. This requires that the Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule."
5.11 No argument or evidence for unfavourable treatment or harassment on the grounds of marital status was presented to me.
5.12 The complainants claim that the respondent did not furnish the complainants with any of the following documentation:
Statement of terms of employment or contract of employment
Grievance and disciplinary procedure
Bullying and harassment policy
5.13 They claim that this failure on the part of the respondent, while not contrary to the Terms of Employment (Information) Act put them, as foreigners, at a particular disadvantage in defending their rights compared to Irish people and therefore indirectly discriminated against them on the race ground. No actual evidence other than mere assertion or speculation was presented to support this case.
5.14 As regards the claims of discrimination in relation to access to employment, promotion or re-grading, given that the complainants were actually recruited the claim of discrimination in access to employment is misconceived. The complainants were employed for a matter of a few weeks so access to promotion or re-grading did not arise. The complainants have not established a prima facie case that they were discriminated against in access to training. As regards conditions of employment, the complainants argue that they were treated less favourably than their colleagues in terms of tips, tasks they were asked to undertake, breaks etc. Assuming that these claims were true, the complainants have not, in my view, established a prima facie case that they were treated less favourably in these matters because of their nationality or national origin, gender, sexual orientation or (in the case of the first-named complainant) disability. It is more likely that they were treated less favourably because they were newly recruited trainees.
5.15 As regards the dismissal of the second-named complainant, I am not satisfied that she has established any facts from which I can infer that she was dismissed because of her gender, sexual orientation or race. The ostensible reason given was that there were not enough hours for her in that branch. The second-named complainant alleged that her colleagues were annoyed when she was recruited because there were not enough hours to go around. This, if true, points to a genuine redundancy situation. The complainants dispute that the second-named complainant was offered, and initially accepted work in another branch only to change her mind when her partner could not be accommodated along with her. Even if the second-named complainant was replaced by another foreign woman, as she alleges (and denied by the respondent), this does not support a claim of gender or racial discrimination.
5.16 The first-named complainant alleges that she was constructively dismissed on the grounds of gender, race and/or sexual orientation. Constructive discriminatory dismissal is where an employee is treated so badly by her employer on any of the discriminatory grounds that it would be unreasonable to expect her to remain in employment. In this case I believe that if the employer had been willing to facilitate both of the complainants by employing them in the same branch she would not have resigned. In my view it was the combination of being separated from her partner and her rows with her supervisor that precipitated her resignation. The first-named complainant has not established a prima facie case of constructive dismissal.
5.17 Both of the complainants have established a prima facie case that they were harassed by fellow employees of the respondent because they were lesbians and therefore were harassed on the grounds of sexual orientation and gender. The respondent has failed to prove the contrary. I have not been given convincing evidence of the existence, at the time the harassment occurred, of an anti-harassment policy which had been effectively communicated to the employees. It is not sufficient to say that it was open to any employee who has been harassed or sexually harassed to contact the restaurant manager or area manager. Therefore I find that the respondent has not proved to my satisfaction that at the relevant time it had taken such steps as are reasonably practicable to prevent persons from harassing or sexually harassing the complainants or women or homosexuals generally. Given the sexual nature of the obscenities directed at the two complainants I find that both of them were victims of sexual harassment as well. It is a duty on employers under the Acts to provide a workplace in which it is safe for lesbians and gay men to be open about their sexuality.
5.18 The complainants allege they have been subject to victimisation within the meaning of section 74 (2) of the Acts. Victimisation has a specific meaning under the Acts. "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 in 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 Act 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.
The complainants have presented no evidence of any adverse treatment as a reaction to them taking any of the actions listed above. Therefore they have not established a prima facie case of victimisation.
5.19 The complainants also allege that they have been subject to discrimination by association, within the meaning of section 6 (1) (b) (i) and (ii) of the Acts. Discrimination by association occurs where someone associated with a person who is covered by a specified ground is treated less favourably because of that association. The complainants claim that they each of them has been discriminated against because they are associated with each other. In my view the claim of discrimination by association is in this case misconceived. The discrimination occurs where a person is treated less favourably not because they are covered by a specific ground themselves but because they are associated with someone covered by that ground. For example, if a person who is not gay is treated less favourably because they are friendly with a gay person, they are being discriminated against on the sexual orientation ground by association. In the current case the only situation where discrimination by association could arise is if the second-named complainant was discriminated against because she was the partner of someone suffering from lupus. No evidence to that effect was presented.
5.20 Finally, the claim by the first-named complainant of discrimination on the disability ground appears to be a claim of denial of reasonable accommodation, that is accommodation or measures put in place by the employer that are effective in meeting the needs of the employee with a disability. This requires a dialogue between the parties on the specific requirements of the employee. In this case the first-named complainant did not inform the respondent in sufficient detail of her medical condition or submit a medical report and state what adaptations she required. Therefore the employer was not in a position to respond.
6 Decision
6.1 In reaching my decision I have taken into account all the submissions, written and oral that were made to me. Having investigated the above complaints, 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 Complainants-
(1) were not directly or indirectly discriminated against by the respondent on grounds of gender, marital status, sexual orientation and race within the meaning of sections 6 (2) (a), (b), (d) and (h) of the Employment Equality Acts, 1998 - 2008 in relation to access to employment, promotion or re-grading, training and conditions of employment and otherwise contrary to sections 8 of the Acts.
(2) The first-named complainant was not discriminated against by the respondent on the ground of disability within the meaning of section 6 (2) (g) and contrary to sections 8 and 16 of the Acts.
(3) The complainants were subject to harassment on the grounds of gender and sexual orientation and sexual harassment in the course of their employment with the respondent within the meaning of section 14A of the Acts.
(4) The complainants were not subject to victimisation within the meaning of section 74 (2) of the Acts.
(5) The first-named complainant was not constructively discriminatorily dismissed and the second-named complainant was not discriminatorily dismissed.
(6) The complainants were not subject to discrimination by association, within the meaning of section 6 (1) (b) (i) and (ii) of the Acts
6.3 I make an order for compensation for the effects of the acts of harassment and sexual harassment in the amount of €7,500 to each of the complainants. As this does not include any element of remuneration, it is not subject to income tax.
Niall McCutcheon
Director
20 May 2013.
1. Arturs Valpeters v Melbury Developments [2010] 21 E.L.R. 64