The Equality Tribunal
Employment Equality Acts
Decision DEC-E2013-144
PARTIES
Mubashir Ul Haq
(Represented by S.I.P.T.U.)
- V -
Cherokee Spur Teoranta Ltd. T/A Spur Steakhouse
(in liquidation)
File references: EE/2011/286
Date of issue: 12 November 2013
Keywords - Employment Equality Acts – Discriminatory Treatment - Race – Religion - Prima Facie case
1. DISPUTE
1.1 This dispute concerns a claim by the complainant that that he was subjected to discriminatory treatment and victimisation by the respondent on the grounds of his race and religion in terms of Sections 6(2) and 74 of the Employment Equality Acts and contrary to Section 8 of those Acts.
1.2 The complainant referred claims of discrimination to the Director of the Equality Tribunal on 17 February 2011 under the Employment Equality Acts. On 27 September 2013, in accordance with his powers under section 75 of the Acts, the Director then delegated the cases to Conor Stokes - an Equality Officer - for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts on which date my investigation commenced. Submissions were sought and received from the parties. As required by Section 79(1) and as part of my investigation, I proceeded to hearing on 8 October 2013. Additional information arising from the hearing was forwarded to the Tribunal on 22 October 2013. All written and oral evidence presented to the Tribunal has been taken into consideration when coming to this decision.
1.3 The date of the hearing was notified to the parties by post. Neither the Liquidator nor any one else for the respondent attended the hearing.
2. SUMMARY OF THE COMPLAINANT'S CASE
2.1 The complainant submitted that he commenced employment in January 2005 as a kitchen porter. The complainant submitted that from the outset, it was acknowledged that he is a practising Muslim and that he was allowed to structure his break times to facilitate his daily prayer routine.
2.2 The complainant submitted that his duties did not require him to handle pork products and that his normal hours of work consisted of 20 hours per week.
2.3 The complainant submitted that this position changed in late 2010 following a site visit by an Inspector from the National Employment Rights Agency (NERA) when his ability to perform obligation to pray was restricted, and his duties were altered to include food preparation, duties that his religious beliefs would not allow him to undertake. The complainant submitted that as a result, his hours of work were significantly reduced and that he was the only member of staff to suffer such a reduction.
3. SUMMARY OF THE RESPONDENT’S CASE
3.1 The respondent did make any submissions in advance of the hearing.
4. FINDINGS AND CONCLUSIONS OF THE EQUALITY OFFICER
4.1 The issue for decision by me is whether or not the respondent subjected the complainant to discriminatory treatment and victimisation on grounds of race and religion, in terms of Sections 6 & 74 of the Employment Equality Acts, and contrary to Section 8 of those Acts.
4.2 Section 85A of the Employment Equality Acts sets out the burden of proof which applies to claims of discrimination. It requires the complainant to establish, in the first instance, facts from which discrimination may be inferred. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised.
4.3 At the start of the oral hearing, the complainant stated that he worked an average of 20 hours per week working on Thursday, Friday, Saturday and Sunday and that he was working under a student visa. The complainant stated that he would pray once or twice during the working day depending on the time of the year, etc, as his prayer times differ depending on the sun’s cycle.
4.4 The complainant stated that his hours of work were reduced in 2010 but could not record with any clarity when that was. The complainant confirmed that he did not have any paperwork indicating his hours of work, neither payslips, nor P60’s. The complainant indicated that the only evidence he had that showed that he worked for the respondent was the information relating to his notification of redundancy which indicated that he worked an average of 10 hours weekly.
4.4 The complainant suggested that the notification of redundancy form submitted was indicative of a reduction in his hours. However, the complainant suggested that his hours prior to about November 2010 were 20 hours per week and following the reduction amounted to 4 hours per week initially but subsequently they fell to just 3 hours per week.
4.5 The complainant indicated that when a new manager took over the running of the restaurant (whose name he did not know) he did not like the complainant praying and that this was the reason his hours were reduced. The complainant stated that the manager did not tell him this directly but that a friend of his informed him that the manager was unhappy that he was away from his work on a Monday lunchtime. (The complainant then confirmed that he neither worked Mondays nor lunchtimes).
4.6 The complainant also suggested that the reduction in his hours was as a response to the NERA inspection and that perhaps the respondent thought that he had sought the inspection and accordingly were penalising the complainant.
4.7 The complainant confirmed that he worked with colleagues of a number of different nationalities and that none of them had their hours reduced at that time.
4.8 The complainant also confirmed that he was never asked to undertake food preparation as he was employed as a “kitchen porter” so why would he be asked to prepare food.
4.9 Having considered the evidence before me I am not satisfied that the complainant’s hours of work were reduced at all, and furthermore, I am not satisfied that if they were reduced, that such a reduction is related to either the complainant’s race or religion. I consider that all that has been proffered at the hearing amounts to mere speculation and allegation without any corroborative evidence.
4.10 In the case of IBM Ireland Product Distribution Ltd and Michelle Svoboda (EDA1116) the Labour Court stated that it has “consistently found that mere allegations unsupported by any corroborative evidence are insufficient to establish a prima facie case and so transfer the burden of proof” and went on to cite its earlier decision in Melbury Developments Ltd v Valpeters (EDA 17/2009) where it stated that “mere speculation or assertion, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn”. In the circumstances therefore, I must conclude that the complainant has not established any facts from which the inference of discrimination can be drawn. Therefore, this element of the complaint must fail.
4.11 In relation to the victimisation allegations, Section 74(2) of the Acts defines victimisation as follows:
(2) 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 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 such repealed enactment, or
(g) an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs.
4.12 Having regard to the allegation that an alleged reduction in the complainant’s hours was as a response to the NERA investigation, the Acts define ‘proceedings’ as relating to proceedings under the Employment Equality Acts. I am not satisfied that the complainant has established facts from which victimisation, as defined in the Acts, may be inferred. Therefore, this element of the complaint must fail also.
5. DECISION
5.1 Having considered all the written and oral evidence presented to me, I find that a prima facie case of discriminatory treatment on the basis of the race ground has not been established and this element of the complaint fails.
5.2 Having considered all the written and oral evidence presented to me, I find that a prima facie case of discriminatory treatment on the basis of the religion ground has not been established and this element of the complaint fails.
5.3 Having considered all the written and oral evidence presented to me, I find that a prima facie case of victimisation has not been established and this element of the complaint fails.
Conor Stokes
Equality Officer
12 November 2013