DEC-E2015-141

EMPLOYMENT EQUALITY ACTS

DECISION NO. DEC-E2015-141

PARTIES

An Employee

(Represented by Frederick Gilligan BL, instructed by Tracey Solicitors)

-V-

A Hotel

(Represented by Arthur Cox)

File Reference: EE/2014/220

Date of Issue: 8th December 2015

1. DISPUTE

1.1 This complaint concerns a claim by the Complainant that he was dismissed by the Respondent shortly into his contract of employment on the grounds of sexual orientation contrary to Sections 6(2)(d) and Section 8 of the Employment Equality Acts (also hereinafter referred to as ‘the Acts’).

1.2 Through his Solicitors, the Complainant referred a complaint under the Acts to the Director of the Equality Tribunal received on 11th April 2014, and both Parties submitted written submissions and further documentation to the Tribunal thereafter. On 20th July 2015, in accordance with his powers under Section 75 of the Acts, the Director of the Equality Tribunal delegated the case to me, Aideen Collard, an Adjudication Officer / 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. As required by Section 79(1) of the Acts and as part of my investigation, I proceeded to hearing on 28th July 2015. Both parties were represented and in attendance and gave evidence. An employee of the Respondent also gave evidence on it’s behalf. All written and oral evidence presented to the Tribunal including documentation submitted during the hearing along with the Parties’ legal submissions have been taken into consideration when coming to this decision.

1.3 This decision is issued by me following the establishment of the Workplace Relations Commission on 1st October 2015, as an Adjudication Officer who was an Equality Officer prior to 1st October 2015, in accordance with Section 83(3) of the Workplace Relations Act 2015.

2. SUMMARY OF THE COMPLAINANT'S POSITION

2.1 By way of background, the Complainant is a young man who has worked as a barman for most of his adult life and has acquired a wide range of bar experience in Ireland and abroad. More recently he was relying on bar work to fund his college studies. Immediately prior to commencing employment with the Respondent, he had worked for a 12 month period in a similarly busy hotel in Dublin which also primarily catered for the tourist trade. He was acknowledged to have been an excellent barman with a friendly manner and the relevant expertise to manage a busy bar as confirmed in a reference from that employer. In early February 2014, the Complainant saw an advertisement for a barman at the Respondent’s Hotel which offered a higher rate of pay than his current position. He felt that he met the requirements for the position as outlined in his CV and in particular, the requirement to be capable of working in a fast paced environment with focus on both local and tourist trade and as part of a team. In his application, he also indicated that he had an RSA training certificate, cash handling training and was Epos and Micros till trained. Following a successful interview with the HR Manager and the General Manager he was offered the position at a rate of €10 per hour being a slightly higher rate than advertised, and he commenced employment on 1st March 2014. He subsequently met with the Bar Manager who was to be his direct Manager, Mr Y, against whom this complaint is primarily directed. He was furnished with a standard contract of employment containing a six month probation period.

2.2 The Complainant worked a total seven shifts at the Respondent Hotel Bar without any difficulty or complaint, or any issue being raised as to his performance as a barman. He was enjoying his employment with the Respondent and felt that he was getting on well with Mr Y and the other staff and doing a good job as a barman. He had a good rapport with local and foreign customers alike.

2.3 On Friday 7th March 2014, the Complainant was working in the Bar as normal when two female customers engaged him in conversation. The Complainant felt that the conversation was friendly and as part of his duty under his contract of employment to be friendly to customers, engaged with both women. One of the women handed him her telephone number written on a piece of paper, the suggestion being that he might contact her at some stage. The Complainant continued to work the remainder of this shift. This piece of paper was produced at the hearing in evidence.

2.4 On Saturday 8th March 2014, the Complainant arrived for work as normal. The Six Nations Rugby was on and so it was a busy weekend for the Respondent. Prior to commencing his shift, he had a conversation with the HR Manager regarding his pay details with no indication that anything was amiss. Subsequent to that conversation, the Bar Manager, Mr Y approached the Complainant requesting his clothing measurements so that a uniform could be provided to him. The Complainant gave Mr Y the requisite details and no dissatisfaction with his performance was indicated, in fact quite the contrary. The fact that his Manager had requested his clothing measurements was indicative to the Complainant that his employment and performance in his new employment was going well.

2.5 Later on in the evening, the Complainant mentioned to the Bar Manager that he had received a telephone number from one of the women in the bar the night before. Mr Y asked the Complainant had he texted her. The Complainant replied: “No”. Mr Y enquired of the Complainant: “Why not?” The Complainant replied that: “She is not my type.”. Mr Y enquired of the Complainant: “What is your type?” The Complainant replied: “Men”. The Complainant noticed that from that moment on the atmosphere changed and there was an awkwardness between Mr Y and himself. In direct evidence, the Complainant also referred to an incident later that evening whereby Mr Y questioned the Complainant’s decision to serve customers who may have been slightly inebriated. Arising from his cross-examination, whilst the Complainant was slightly unclear as to the precise timing and location of these conversations, he was extremely clear and precise in relation to his recollection of the contents.

2.6 The following day of Sunday 9th March 2014, the Complainant was told that he was not needed in the Bar, and was directed to work in the stock-room for his whole shift even though the bar was busy, but he did not suspect that anything was amiss. He was not rostered to work on Monday 10th or Tuesday 11th March 2014. He was advised that he was not required for work as rostered on Wednesday 12th March 2014, and that Mr Y wanted to meet him on Thursday 13th March 2014 at 5pm. By email dated 11th March 2014, the HR Manager contacted the Complainant to request him to bring proof of his PPS and photo ID on his next shift for pay purposes and so was clearly unaware of his imminent dismissal.

2.7 On 13th March 2014, the Complainant met the HR manager on his way into the meeting and advised her that Mr Y had wanted to meet him at 5pm. She replied: “That’s news to me”. At this meeting, Mr Y said to him: “I am going to keep this sweet, you are not what we were looking for, I am just going to shake your hand. You are more of a barman than a hotel man.” The Complainant found this statement very unusual particularly in light of the absence of any remarks to the contrary prior to that conversation. He immediately thought back to the conversation he had had with Mr Y regarding his sexual orientation on 8th March 2014. The Complainant was in no doubt that from that moment in time things had changed irrevocably between them, causing Mr Y to summarily dismiss him. The Complainant was shocked and stunned by the manner in which he was dismissed. He did not question Mr Y as to whether it was as a result of his disclosure and simply left the meeting. The Respondent’s Employee Leaver Form recorded his reason for leaving as “termination (w/in probationary period)”. As he was under financial pressure to pay for rental accommodation in Dublin and now found himself without employment, he moved home for short period. He had to explain to his family the circumstances of his dismissal. His former employer, who had provided him with an excellent reference agreed to take him back, and he has not experienced any similar issues with any other employer. When the Complainant was asked why he had not engaged in correspondence with the Respondent in relation to the reasons for his dismissal, he replied that there was no point and he had instead submitted a claim shortly thereafter as received by the Equality Tribunal on 11th April 2014.

2.8 The Representative for the Respondent put it to the Complainant that he had made a significant amount of till voids and drink spillages for an experienced barman, leading to some financial loss to the Respondent and in particular on 8th March 2014, being the same day that he alleges that he revealed his sexual orientation to Mr Y. The Respondent produced documentation containing a log of till voids and drink spillages for the week in question. In response, the Complainant confirmed that the only slight difficulty he encountered was familiarising himself with the Respondent’s till system which was different from what he was accustomed. Other than briefly being shown the till commands he was not given any specific training on the till system. He confirmed that this was the first time that any issue with his performance had been raised and he had never had sight of the documentation now being produced to support this contention. His Representative objected to the documentation on a number of grounds including the accuracy of same and the fact that that no comparative records for another barman starting off employment with the Respondent were furnished to demonstrate that the Complainant’s void rate and drink spillage was excessive. The hearing was adjourned for a short period to allow the Complainant and his Representatives to consider the documentation.

2.9 The Complainant submits that Mr Y’s attitude towards him changed immediately after the conversation about his sexual orientation on 8th March 2014, and this is borne out by the fact that Mr Y had just requested his clothing measurement details, being indicative that he was preparing to have the Complainant as a long term member of staff. This is also supported by the fact that the HR Manager had requested the Complainant’s payment details just prior to that conversation. The Complainant submits that the Respondent’s written submission that his dismissal was a commercial one is not borne out by the actions and words of the Respondent, its servants and/or agents in circumstances where no issue had been raised regarding his performance previously. In response to the Respondent’s assertion that it is gay friendly, the Complainant submits that while the Respondent as a corporate group may well promote and actively engage with the LGBT community, Mr Y’s personal views do not bear this out and the Respondent is liable for his actions. The Complainant submits that he was dismissed by the Respondent by reason of his sexual orientation contrary to Section 6(2)(d) of the Acts. It is submitted that the Respondent treated the Complainant in a manner which was completely different to the manner in which he would have treated the Complainant had he not been gay. Overall, the Complainant submits that the chronological order of the events as outlined are so unusual that they establish a prima facie case of discrimination pursuant to Section 85(A) of the Employment Equality Acts. The Complainant also relies upon a number of cases in relation to the applicable principles in such circumstances, and in particular Citibank -v- Ntoko (2004) 15 ELR 116.

3. SUMMARY OF THE RESPONDENT'S POSITION

3.1 By way of background, the Respondent is a limited liability company responsible for operating the Hotel in question which forms part of a group of restaurants, hotels and pubs. The Hotel has approximately 100 employees, is located in Dublin City Centre and generates most of its revenue from the tourist industry. The staff are generally very busy and it is for this reason that the Hotel regularly seeks to hire experienced bar staff. Quality and friendliness of service are of utmost importance to the Respondent, upselling is a particularly important aspect of the role, and bar staff are expected to engage with the guests in an effort to generate business for the Hotel and sister hotels and bars.

3.2 The Complainant stated in his application and interview that he had the requisite experience for the position in question. It was on this basis that he was successful in the competition for the role and he commenced employment with the Respondent on 1st March 2014. As provided for by Clause 4 of the contract, the first six months of the Complainant’s employment with the Respondent was probationary as follows: “You will be employed initially on a probationary period of 6 months. During this time your performance will be reviewed. The Company may extend the probationary period for up to one year on the same terms. The Company’s Disciplinary Procedure does not apply to your employment during the probationary period or any extension thereof. The Company shall have discretion with regard to the disciplinary procedures to be followed during the probationary period.”

3.3 Mr Y gave evidence confirming that he had had 16 years’ experience of working as a Bar Manager with the Hotel Group with 10 years in the Hotel. The Respondent expects managers to exercise their expertise and discretion in evaluating new Hotel employees to ensure that they are suitable for the positions to which they have been hired. After careful monitoring of the Complainant over the course of seven shifts, Mr Y came to the conclusion that the performance of the Complainant did not meet the standard of capability indicated in both his CV and interview for a variety of reasons. In particular, he took the view that he did not have good customer awareness and was slow around the till with an excessive till void and drink spillage rate for an experienced barman, even allowing for familiarisation with the system. He said that the till voids were the highest he had ever seen (14 in total over the week including 6 on 7th March 2014 and 7 on 8th March 2014). Although he accepted that some of the voids related to keying in incorrect prices, other voids would have caused a certain level of financial loss to the Respondent. He confirmed that he decided to terminate the Complainant’s employment upon reviewing the till void and spillage log on Monday 10th March 2014 as put to the Complainant. In relation to the Complainant being directed to work in the stockroom on Sunday 9th March 2014, he said that was part of the job. When asked why he had not raised these performance issues with the Complainant before terminating his employment, he said there was no point and it was better to let him go on good terms. On 13th March 2014, Mr Y met with the Complainant. He explained to him that he had concluded that he was not suitable for the position and that his employment was being terminated. With the exception of one word, being ‘short’ instead of ‘sweet’, he agreed with the formulation of words used to dismiss the Complainant as outlined above. His reference to the Complainant being “more of a barman than a hotel man” referred to his view that a hotel bar is generally busy and the Complainant would be better suited to a quieter bar. In cross-examination, it was put to Mr Y that the records relied upon were questionable in circumstances where the amounts did not tally and there was no comparative documentation available for a similarly situated barman.

3.4 Mr Y denied that he was ever aware of the Complainant’s sexual orientation and has no recollection of the conversation alleged to have occurred on 8th March 2014 wherein the Complainant claims to have disclosed his sexuality. He also denied having any recollection of the later conversation regarding his disapproval at the Complainant serving some customers. There were no other witnesses to these conversations. Under cross-examination, Mr Y was quite vague as to whether or not he had sought the Complainant’s measurements for the purposes of acquiring a uniform earlier that day. He said he would have warned the Complainant to be aware of the number of voids on 7th March 2014. When questioned by the Tribunal, Mr Y confirmed that he did not have any real knowledge or training in Employment Equality Law notwithstanding being responsible for the recruitment of bar staff for a considerable period. He confirmed that he had only ever dismissed two other employees during their probation and that this had been after a longer period than that in respect of the Complainant.

3.5 Whilst it was accepted on behalf of the Respondent that the procedures adopted to terminate the Complainant’s employment fell far short of the fair procedures that would be expected, it was submitted that he was not dismissed for a discriminatory reason or on the basis of sexual orientation. As the Complainant was still on probation, his employment was terminated in accordance with its contractual terms during the probationary period. The Respondent regularly exercises its contractual rights in respect of new recruits in this regard and on this basis the Complainant is not unique, and a total of 121 employees left employment with the Respondent in 2014. Nearly 16% of those former employees left on account of their employment being terminated within their periods of probation.

3.6 The Respondent refutes in the strongest possible terms the allegation that the Complainant’s dismissal was discriminatory in nature and in particular owing to his sexual orientation. Firstly, it submits that where the Respondent was not aware of the Complainant’s sexual orientation it would not have been possible to discriminate against him on this basis. Therefore the Complainant has failed to discharge the burden of proof to establish a prima facie case of discrimination. Secondly, the Respondent submits that no discrimination arose in the context of its treatment of the Complainant, and the decision to terminate the Complainant’s employment during his probation was not influenced by the Complainant’s sexual orientation, or indeed any of the prohibited grounds of discrimination under the Acts. Rather, the decision was a commercial one based solely on the Complainant’s performance and was carried out in accordance with standard practice in relation to employees on probation.

3.7 Without prejudice to the submissions made in respect of the Respondent’s lack of awareness of the Complainant’s sexual orientation, the Respondent submits that his sexual orientation or indeed the sexual orientation of any other staff member is entirely irrelevant to any employment decision it would ever make. To the contrary, the Respondent submits that it has a history of supporting the lesbian, gay, bisexual and transgender (LGBT) community. Conduct in the manner alleged by the Complainant would be entirely inconsistent with the relationship it has worked to establish with this community and would be harmful to business interests. In particular, one of the Respondent’s other hotels has operated a well-known gay nightclub every week since August 2010 and larger LGTB events are held in the Hotel itself. In addition, one of the members of the band which is contracted to play regularly in the Hotel is openly gay. The Respondent also employs a number of openly lesbian and gay employees. As the sexual orientation of all employees is a personal matter, the Respondent is mindful of not analysing this demographic of its workforce. An existing member of staff who is openly gay also gave evidence on the Respondent’s behalf, that he enjoyed a good working relationship with Mr Y whenever he was required to assist him behind the Bar and had never experienced any discrimination from him. He also offered the view that the Complainant’s void rate on the till system was very high for an experienced barman. He referred to the existence of a buddy system whereby existing staff assist with training in other staff. Under cross-examination, he admitted that Mr Y had not been responsible for his recruitment as he was initially employed in a different area.

3.8 Overall, the Respondent submits that the Complainant has not established a prima facie case of discrimination contrary to the Acts and has therefore failed to discharge the requisite burden of proof. In particular, it submits that the Complainant has adduced absolutely no evidence of any relationship or link between his sexual orientation and the decision to terminate his employment during his probationary period. In this respect, the Respondent relies on a number of well-known authorities in relation to the applicable test for the applying the burden of proof including Southern Health Board -v- Mitchell DEE011, Melbury Developments Ltd -v- Valpeters EDA0917, Graham Anthony & Company Limited -v- Margetts EDA038 and A Cleaner -v- A Cleaning Company DEC-E2011-263.

3.9 Without prejudice to the Respondent’s submission that the Complainant has not established a prima facie case of discrimination which would shift the burden of proof to the Respondent, it is submitted that the Respondent did not discriminate against the Complainant by reason of his sexual orientation in relation to his dismissal, which was solely down to his performance as outlined above. Furthermore it is contended that the function of the Tribunal in hearing this claim is solely to determine whether the Complainant was subjected to discriminatory treatment on the grounds of sexual orientation and not to consider whether his dismissal was fair or unfair in some general sense, placing reliance in this respect upon the decision in a Complainant -v- A Community Development Organisation DEC-E2012-187.

4. FINDINGS AND CONCLUSIONS OF THE EQUALITY OFFICER

4.1 The main issue for my decision is to determine whether or not the Complainant’s dismissal by the Respondent was on the grounds of his sexual orientation contrary to Sections 6(2)(d) & 8 of the Acts.

4.2 Section 85A of the Acts sets out the burden of proof which applies to claims of discrimination. As elucidated in the aforesaid caselaw, 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. When investigating a complaint, the role of the Tribunal includes undertaking an examination of any conflicts of fact in the evidence presented by the Parties to arrive at reasoned findings of fact.

4.3 In applying the aforesaid test to cases of all types of alleged discriminatory treatment, the Equality Tribunal has adopted the approach to the burden of proof first set out by the UK House of Lords in a race discrimination case, namely Glasgow City Council -v- Zafar (1998) 2 All ER 953 and approved in Davis -v- Dublin Institute of Technology (High Court, Quirke J., Unreported, 23 June 2000). In Citibank -v- Ntoko (2004) 15 ELR 116, the Labour Court summarises the approach as follows:

“This approach is based on the empiricism that a person who discriminates unlawfully will rarely do so overtly and will not leave evidence of the discrimination within the complainant’s power of procurement. Hence, the normal rules of evidence must be adapted in such cases so as to avoid the protection of anti-discrimination laws being rendered nugatory by obliging complainants to prove something which is beyond their reach and which may only be in the respondents capacity of proof. Support for this approach can be found in the speech of Lord Browne-Wilkinson in Glasgow City Council -v- Zafar at p. 958, in which he quoted with approval the guidance given to Employment Tribunals by Neill L J in King v Great Britain China Centre [1992] I.C.R. 516, as follows: 'From these several authorities it is possible, I think, to extract the following principles and guidance.

1. It is for the applicant who complains of racial discrimination to make out his or her case. Thus if the applicant does not prove the case on the balance of probabilities he or she will fail.

2. It is important to bear in mind that it is unusual to find direct evidence of racial discrimination. Few employers will be prepared to admit such discrimination even to themselves. In some cases the discrimination will not be ill-intentioned but merely based on an assumption that "he or she would not have fitted in."

3. The outcome of the case will therefore usually depend on what inferences it is proper to draw from the primary facts found by the tribunal. These inferences can include, in appropriate cases, any inferences that it is just and equitable to draw in accordance with section 65(2)(b) of the Act of 1976 from an evasive or equivocal reply to a questionnaire.

4. Though there will be some cases where, for example, the non-selection of the applicant for a post or for promotion is clearly not on racial grounds, a finding of discrimination and a finding of a difference in race will often point to the possibility of racial discrimination. In such circumstances the tribunal will look to the employer for an explanation. If no explanation is then put forward or if the tribunal considers the explanation to be inadequate or unsatisfactory it will be legitimate for the tribunal to infer that the discrimination was on racial grounds. This is not a matter of law but, as May L.J. put it in North West Thames Regional Health Authority v. Noone ([1988] ICR 813 at 822), "almost common sense."

5. It is unnecessary and unhelpful to introduce the concept of a shifting evidential burden of proof. At the conclusion of all the evidence the tribunal should make findings as to the primary facts and draw such inferences as they consider proper from those facts. They should then reach a conclusion on the balance of probabilities, bearing in mind the difficulties which face a person who complains of unlawful discrimination and the fact that it is for the complainant to prove his or her case.'”

4.4 It follows from this approach that although the motive behind the alleged discriminatory treatment may be very relevant, intention to discriminate is not a necessary precondition to liability. Judy Walsh (2012) usefully sums up the relevant case law on this point: “To summarise, the respondent need not to have been motivated by prejudice or have intended to treat someone less favourably because of their gender, ethnicity and so on. Furthermore, discrimination need not be the sole or even the principal factor behind the conduct complained of. It is enough that it is of a significant influence.” (Equal Status Acts 2000-2011 - Discrimination in the Provision of Goods and Services, P. 98)

4.5 The relevant Section 6(1) of the Employment Equality Acts provides: “For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances, discrimination shall be taken to occur where- (a) a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2)...” Section 6(2)(d) provides:“As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are- that they are of different sexual orientation (in this Act referred to as ‘‘the sexual orientation ground’’)”.

4.6 In unlawful discrimination cases, a respondent will rarely overtly discriminate against a complainant or leave any evidence of discrimination within the complainant’s procurement. Discrimination can be inbuilt and subconscious such that a respondent may be convinced that there is a good non-discriminatory reason for their actions. In this respect, it is impossible to know precisely what was going through Mr Y’s mind when he decided to dismiss the Complainant. Therefore, the Tribunal has to rely upon the factual matrix and weigh up all the evidence on the balance of probabilities, applying the requisite burden of proof using the guidance outlined above, to ascertain whether the Complainant has been treated less favourably than another person of a different sexual orientation would have been in a comparable situation. There is a direct conflict in evidence as to whether the conversation of 8th March 2014 occurred wherein Mr Y could have become aware of the Complainant’s sexual orientation, in the absence of any witnesses to confirm the account or any obvious indicators. On balance I accept the Complainant’s account. In contrast to the Complainant, Mr Y presented as quite vague even on less controversial aspects of the evidence. The Complainant was extremely clear in his recollection of the sequence of events that occurred on 8th March 2014, from being asked for his pay details by the HR Manager, then his uniform measurements by Mr Y, followed by a subsequent seemingly benign conversation wherein he revealed his sexual orientation to Mr Y. Thereafter he describes a complete sea-change in Mr Y’s attitude towards him citing a tetchy exchange between them later that day. Although Mr Y may be unable to recall these conversations, I am satisfied that the conversation wherein the Complainant revealed his sexual orientation to Mr Y occurred on that date.

4.7 In ascertaining the reasons for his dismissal, the following admitted and/or uncontroverted facts also tend to support the Complainant’s contention that performance was not the reason for his dismissal:

· The Complainant was directed to work in the stockroom the following day of 9th March 2014 even though the bar was busy and he was told not to attend for his next shift on 12th March 2014.

· It is agreed that no issue had ever been raised regarding the Complainant’s performance prior to his dismissal. Whilst it may have been the easier option to let the Complainant go on good terms, I cannot accept that Mr Y would not have given some prior indication of his concerns about performance.

· If performance had been the main issue, it was not brought to the Complainant’s attention at any stage and he was not given any specific training or mentoring to address any such performance issues.

· If there had been any real doubt in Mr Y’s mind as to the Complainant’s suitability as at 8th March 2014, I do not believe that Mr Y would have asked him to provide his measurements for a uniform.

· Given the Complainant’s prior excellent record as a barman in a similarly busy hotel as confirmed by his former/present employer, it is not credible that Mr Y would have dismissed him so swiftly without giving him more of a chance if performance was the main issue. In so finding, I note that Mr Y had only ever dismissed two other employees during their probation after a longer period of time.

· At the hearing for the very first time, the Complainant’s performance in relation to his use of the till system and drink spillage was proffered as justification to dismiss him with supporting documentation produced to support same. This had never previously been put to the Complainant, such that the Tribunal had to adjourn briefly to allow him to consider same. Given the lack of detail within this documentation and absence of documentation for a similarly situated barman, I do not consider this documentation to be of any significant probative value in relation to the Respondent’s position.

· If performance had been the main issue, I find it incredible that Mr Y would not have shared his concerns about the Complainant’s performance with the HR Manager who still appeared to be in the dark as to the impending dismissal and reasons for same prior to and up until the dismissal meeting.

· I also find it credible given the circumstances of the Complainant’s dismissal without warning and his shocked state that he would have left the meeting without questioning Mr Y as to whether his dismissal resulted from his disclosure. I also find his explanation for not engaging in correspondence regarding the reason for his dismissal credible on the basis that it would be futile and given how quickly he issued his complaint, that he considered this to be the reason for his dismissal at the time.

4.8 Therefore and based upon the aforesaid findings of fact, I consider the Respondent’s explanation for the Complainant’s dismissal to be inadequate. I have to infer that Mr Y either consciously or subconsciously formed a view as to the Complainant’s suitability for the position arising from their conversation on 8th March 2014 wherein he revealed his sexual orientation, and this was a significant factor in his decision to dismiss him on 13th March 2014. Even if Mr Y had doubts about the Complainant’s performance and ability as a barman in a busy hotel environment, I do not believe that he would have dismissed a barman who was not gay so swiftly and without affording him more of a chance in the same circumstances. In so finding, I am not necessarily holding that Mr Y’s dismissal of the Complainant was intentional or motivated by ill-will or prejudice or indeed that there were not other reasons influencing his decision to dismiss him. I have no doubt that Mr Y has a good working relationship with staff who are openly gay including the witness who attended to give evidence confirming same on behalf of the Respondent. I also have no doubt that the Respondent itself is a gay friendly organisation in relation to events run by its chain of restaurants, hotels and bars. However, the Respondent is liable for the actions of its staff under the Acts and has a duty to ensure that it operates a recruitment policy that complies with the Acts and ensure that staff are properly trained in relation to their Employment Equality Law obligations. For the aforesaid reasons, I find that the Complainant has established a prima facie case of discriminatory dismissal on the grounds of sexual orientation and the Respondent has not satisfactorily rebutted the inference of discrimination raised.

4.9 Finally, I find that as a Bar Manager responsible for recruitment, Mr Y’s admitted lack of knowledge of Employment Equality Law is very concerning as well as the attitude adopted that it is permissible to simply dismiss an employee during the probation period without any adherence to fair procedures whatsoever. In so commenting, I am cognisant of his Representative’s submission that although the process adopted in respect of the Complainant may have fallen far short of fair procedures and even if the dismissal was unfair, it was not unfair for a discriminatory reason and hence outside the remit of the Tribunal. However, I have found that the dismissal in this case was discriminatory under the Acts.

5. DECISION

5.1 I have concluded my investigation of the complaint herein and based on all of the aforementioned, I find pursuant to Section 79(6) of the Act, that the Respondent discriminated against the Complainant on the grounds of sexual orientation contrary to Section 6(2)(d) and Section 8 of the Employment Equality Acts in relation to his dismissal on 13th March 2014.

5.2 In accordance with Section 82 of the Act, I order the Respondent to:

(a) Within 42 days of the date herein, pay the Complainant €20,000 in compensation for breaches of the Employment Equality Acts. The Complainant clearly suffered considerable distress and humiliation owing to the circumstances of his dismissal. This award is arrived at having regard to the seriousness of the discrimination, effect on the Complainant and requirement pursuant to Article 17 of the Framework Directive that the sanction be “effective, dissuasive and proportionate” and equates to one year of basic pay. As this redress is for the infringement of the Complainant’s statutory rights, it is therefore not subject to income tax as per Section 192(A) of the Taxes Consolidation Act 1997 (as amended by Section 7 of the Finance Act 2004).

(b) I also deem it necessary to direct that the Respondent review its recruitment policy under the Acts and provide specific training on Employment Equality to its staff within six months herewith.

(c) Given the sensitivities in this case, I have exercised my discretion to anonymise this decision.

__________________

Aideen Collard

Adjudication Officer / Equality Officer

8th December 2015