The Equality Tribunal
EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E2015-060
PARTIES
KEVIN O’ BRIEN
AND
TGI FRIDAYS
( represented by Bill Austin, IBEC)
File reference: EE/2013/520
Date of issue: 30 July 2015
HEADNOTES: Employment Equality Acts, Section 6, Gender, Age and Section 74 Victimization.
1 DISPUTE
1.1 This dispute concerns a claim by Mr. Kevin O’ Brienthat he was discriminated against by TGI Fridays on the grounds of gender and age contrary to section 6 (2) (a) and (f) of the Employment Equality Acts.
1.2 The complainant also has a claim for victimization pursuant to Section 74 of the Employment Equality Acts.
1.3 The complainant referred his claim to the Director of the Equality Tribunal on 2nd October, 2013 under the Employment Equality Acts. On 4th June, 2015, in accordance with his powers under section 75 of the Acts, the Director delegated the case to me, Niamh O’ Carroll Kelly, 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 received from both sides and in accordance with Section 79(1) of the Acts and as part of my investigation I proceeded to a hearing on 16th June, 2015.
2 COMPLAINANTS' SUBMISSION
2.1 The claimant commenced employment with the respondent on the 26th November, 2009 in the St. Stephen’s Green restaurant. He held the position of Server Assistant. In February, 2012 he relocated to the Swords restaurant, where he stayed until he resigned his position on the 19th August, 2013.
2.2 The complainant alleges he was picked on, teased by his managers and treated less favourably than other employees due to his appearance and his age.
2.3 The complainant alleges that he was requested to wear an ill fitting female uniform T shirt by his boss and he found this humiliating.
3 RESPONDENT'S SUBMISSION
3.1 On the 16th March 2013 the complainant approached Mr. Simon Hanlon to complain about Mr. Thomas Masterson, General Manager of the Swords restaurant. On the 18th March the complainant lodged a formal written complaint in relation to Mr. Masterson’s treatment of him. This complaint was not one which alleged discrimination.
3.2 A meeting was arranged on the 20th March, 2013 to discuss the complainant’s grievance. At that meeting the complainant stated that Mr. Masterson was always picking on him and addressed him using a smart tone. He also stated that Mr. Masterson had made a gesture towards him which was witnessed not by the complainant but by his mother. The complainant accused Mr. Masterson of being a liar and demanded the CCTV footage be viewed. It was viewed and nothing came of that. He also stated that Mr. Masterson was disrespectful to female customers. When pressed, the complainant could not give any details or examples of the disrespectful behaviour complained of.
3.3 On the 25th March, 2013 the complainant and Mr. Masterson had a meeting to discuss his complaint. Mr. Masterson explained that he found the complainant’s attitude difficult to work with and explained that the complainant had a habit of not following instructions and not responding when spoken to. Mr Masterson admitted that he had spoken to the complainant on the night of the 15th March in a sarcastic tone as he was frustrated with him not following his instructions.
3.4 Mr. Masterson admitted giving the complainant a female T shirt to try on in circumstances where the complainant was not wearing his uniform and it was all they had in the office. It was a US size L and Mr. Masterson thought it might fit as the US sizing is different to Irish sizing. Furthermore, the only difference between a female T-shirt and a male T - shirt is, one has a zip at the neckline and one has buttons.
3.5 Mr. Masterson denied making a gesture about the complainant.
3.6 On the 5th May, 2013 the complainant requested he be allowed sit at the bar with friends. This request was refused. He was advised to sit in the restaurant. He requested a staff discount. This request was refused in line with company policy as he himself was not eating or drinking.
3.7 On the 7th June the complainant made a verbal complaint about another server. He did not, despite being requested to do so, put this complaint in writing.
3.8 On the 9th August, 2013 the complainant did not attend at work. The respondent contacted the complainant and he explained that he was sick and depressed. He did not attend on the 10th , 11th or the 12th. He did not submit a sick certificate despite stating he had one.
3.9 The complainant resigned his position on the 19th August, 2013.
4 FINDINGS & CONCLUSIONS OF THE EQUALITY OFFICER
4.1 I have to decide if the complainant was the subject of discrimination on the grounds of gender and/or age. In reaching a decision, I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence presented at the hearing.
Less favourable treatment ( gender )
4.2 Section 6(1)
“ For the purposes of this Act, discrimination shall be taken to occur where, on any of the grounds in subsection (2) (in this Act referred to as “the discriminatory grounds”), one person is treated less favourably than another is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2)…”
Section 6 (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).
4.3 The complainant stated that on the night 16th March he did not have his uniform on him at work. It got damaged on a previous shift. Mr. Masterson came in and gave the complainant a t shirt that was a Large sized ladies T shirt. He requested the complainant to try it on to “see if it fits”. The complainant knew it wouldn’t fit but he went into the bathroom and pretended to try it on and then came out and said it didn’t fit. He felt Mr. Masterson was making fun of him because as he stated he is “carrying a bit of extra weight”. The respondent stated that the large ladies shirt was the only one in the office and the sizing is unreliable and could have fit him. They also stated the ladies and gents t shirts are identical save for the neckline. One has a zip and one has buttons. They stated that it is company policy that their staff work in their uniforms at all times and they were simply trying to facilitate the complainant. They had ordered in new t - shirts but they had not arrived in time to cover the shift the subject matter of this complaint.
4.4 The complainant stated that his mother and sister witnessed Mr. Masterson making an inappropriate gesture which they believed was directed at the complainant and was related to the t - shirt incident. The complainant didn’t see this gesture. His mother and sister did not give evidence.
4.5 The complainant stated that Mr. Masterson made comments about his weight by saying “ you’re eating a bit too much” or on another occasion “leave some for someone else” when he brought in a plate of muffins from Starbucks. He did not make a formal /written complaint about these comments.
4.6 In Southern Health Board v Mitchell ( 2001) ELR 201
“ The first requirement is that the claimant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them . This indicated that a claimant must prove, on the balance of probabilities , the primary facts on which they reply in seeking to raise a presumption of unlawful discrimination.”
In Margetts v Graham Anthony & Company limited EDA038
“the mere fact that the complainant falls within one of the discriminatory grounds laid down under the Act is not sufficient in itself to establish a claim of discrimination. The complainant must adduce other facts from which it may be inferred on the balance of probabilities that an act of discrimination occurred.
4.7 The complainant did not identify a comparator. In order to satisfy the legal requirements of Section it is essential that the complainant show he was treated less favourably than another. He failed to do so.
4.8 The claimant has failed to establish a prima facia case of discrimination on gender grounds.
5. Less favourable treatment ( age ground)
5.1 No evidence was adduced by either the complainant or the respondent in relation to the age discrimination claim.
5.2 The claimant has failed to establish a prima facia case of discrimination on age grounds.
6. Victimization.
6.1 Section 74 – Victimization shall be construed in accordance with subsection (2)
(2) For the purposes of this Part, victimization occurs where the dismissal or other penalisation of the complainant was solely or mainly occasioned by the complainant having, in good faith-
(a) Sought redress under this Act or any enactment repealed by this Act for discrimination or for a failure to comply with an equal remuneration term or an equality clause (or a similar term or clause under any such repealed enactment.)
(b) Opposed by lawful means an act which is unlawful under this Act or which was unlawful under any such repealed enactment, or
(c) Given evidence in any criminal or to her proceedings under this Act or any such repealed enactment, or
(d) Given notice or an intention to do anything within paragraph (a) to (c).
6.2 The complainant lodged a complaint on the 18th March, 2013. The complaint was about “ the on-going cynical attitude of Thomas” . The complaint lodged does not meet the requirements as set out in Section 74 (2) (a) – (d).
6.3 The complainant has failed to establish a prima facia case of victimization pursuant to Section 74 of the Act.
7. DECISION
7.1. I have investigated the above complaints and make the following decisions in accordance with section 79 of the Acts that:
· The complainant failed to establish a prima facia case of discrimination on gender grounds.
· The complainant failed to establish a prima facia case of discrimination on age grounds.
· The complainant failed to establish a prima facia case of victimization.
The complaint fails.
______________________
Niamh O’Carroll Kelly, B.L.
Equality Officer
30 July 2015.