The Equality Tribunal
Employment Equality Acts, 1998 to 2008
Equality Officer Decision
DEC-E2015-034
Ms Katarzyna Fluda & Ms Jolanta Jarmolinska
[Represented by Joanna Kwiatkowska]
-v-
MBCC Foods Ireland Limited
[Represented by Peninsula Business Services (Ireland) Ltd]
File Ref: EE/2010/329, 333
Date of Issue: 23 June 2015
Headnotes: Alternative avenues of redress - Employment Equality Acts 1998 to 2008 ss.2, 6 and 8 and 101.
1. Dispute
This case concerns complaints by Ms Katarzyna Fluda (“Complainant 1”) and Ms Jolanta Jarmolinska (“Complainant 2”) together (the “Complainants”), of Polish nationality, that they were discriminated against on the ground of race, within the meaning of sections 6 (2) (h) in conditions of employment including dismissal and otherwise contrary to section 8 and were subject to victimisation within the meaning of section 74 of the Employment Equality Acts 1998 to 2008 ("the Acts") by MBCC Foods Ireland Ltd (the “Respondent”).
2. Background
Complainant 1 referred complaints under the Acts to the Director of the Equality Tribunal on 28 April 2010. Complainant 2 referred complaints under the Acts on 29 April 2010. The Complainant sent in a written submission to the Equality Tribunal which was received on 3 March 2011. An answering submission was made by the Respondent on 14 April 2011. As required by section 79 (1) of the Acts and as part of my investigation I proceeded to hearing on 20 September 2012 which was attended by both parties.
3. Summary of Complainants’ case.
3.1 The Complainants stated that they were employed by the Respondent as full time kitchen staff/assistants in Pizza Hut in Carlow. They claim that they were discriminated against in the following ways:
1.They were dismissed from work or subject to victimisatory dismissal for reasons which did not merit a dismissal: in the case of Complainant 1 for parking in the customers’ car park and in the case of Complainant 2 she entered the manager’s office and took the jar with tips for kitchen staff. They claim that an Irish employee would not have been dismissed for these reasons.
2.They were working under pressure and close watch all the time and subject to excessive criticism. They were not to take breaks unlike the waiting staff.
3.Their terms and conditions of employment, in particular the rules of remuneration were changed many times.
4.They were not allowed to speak Polish at work in the kitchen.
5.They were subject to more stringent conditions than other employees such as wearing of hairnets, wearing of jewellery, nail varnish etc.
4. Summary of Respondent's case.
4.1 Preliminary issue.
The Respondent raised as a preliminary issue that the Complainants brought claims of unfair dismissal against the Respondent before a Rights Commissioner. Rights Commissioner’s recommendations had issued dated 15 February 2011 in respect of those claims. It is prohibited to recover for dismissal under the Unfair Dismissals legislation and the Acts. Section 101 (4) (b) of the Acts provides that an employee who has been dismissed shall not be entitled to seek redress under this Part in respect of the dismissal if in the exercise of powers under the Unfair Dismissals Acts, 1977 to 1993, a rights commissioner has issued a recommendation in respect of the dismissal.
4.2 As regards the other elements of the Complainant’s case, the Respondent replied as follows:
Victimisation
Section 74 (2) of the Acts defines victimisation as follows:
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 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.
None of these apply to the Complainants. The Respondent cannot understand how a claim of victimisation arises.
As regards the other complaints of discrimination, the Respondent argued that such differences that did arise were necessary differences between the treatment of kitchen staff and waiting staff. The rules on hairnets etc. applied to all kitchen staff irrespective of nationality and were a Health and Safety requirement.
The Respondent admitted that they operated an English only policy. This rule applied to all staff irrespective of nationality. This is due to the fact that they employ people from many different countries and to avoid alienating anybody.
5. Director’s conclusions
5.1 Preliminary issue.
I have examined the written recommendations of the Rights Commissioner on the referrals by the Complainants of unfair dismissal claims and have concluded that, based on the written evidence provided, the Complainants are not entitled to seek redress under the Acts in respect of their dismissal since, in the exercise of powers under the Unfair Dismissals Acts, 1977 to 1993, a rights commissioner has already issued Recommendations in respect of their dismissals. Therefore, that element of their complaints fails.
5.2 Victimisation
No evidence of victimisation in the meaning of the Acts was presented.
5.3 Burden of Proof.
Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination. It requires the Complainants to establish, in the first instance, facts from which it may be presumed that there has been discrimination in relation to them. If they succeed 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 Court[1], 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.
In this case it was submitted that the Complainant was treated badly by the Respondent and the Court was invited to infer that he was so treated because of his race. Such an inference could only be drawn if there was evidence of some weight from which it could be concluded that persons of a different race or nationality were or would be treated more favourably. All that has been proffered in support of that contention is a mere assertion unsupported by any evidence."
It is only where such a prima facie case has been established that the burden of proving there was no infringement of the principle of equal treatment passes to the Respondent. In reaching my decision, I have taken into account all of the submissions, written and oral, made by the parties.
5.4 Discriminatory treatment in relation to Conditions of Employment
Section 6(1) of the Acts provides that discrimination shall be taken to occur where “a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2)…..” Section 6(2) (h) of the Acts defines the discriminatory ground of race as follows – “as between any 2 persons, that they are of different race, colour, nationality or ethnic or national origins". It follows that the Complainants must establish that they were subject to less favourable treatment on the ground of race (nationality) i.e. because they are Polish.
5.5 Section 8 of the Acts provides that an employer shall not discriminate against an employee in relation to conditions of employment or training. Section 8 (6) states:
an employer shall be taken to discriminate against an employee or prospective employee in relation to conditions of employment if, on any of the discriminatory grounds, the employer does not offer or afford to that employee or prospective employee or to a class of persons of whom he or she is one—
(a) the same terms of employment (other than remuneration and pension rights),
(b) the same working conditions, and
(c) the same treatment in relation to overtime, shift work, short time, transfers, lay-offs, redundancies, dismissals and disciplinary measures, as the employer offers or affords to another person or class of persons, where the circumstances in which both such persons or classes are or would be employed are not materially different.
5.6 The Complainants have claimed that the Respondent discriminated against them as follows:
1.They were working under pressure and close watch all the time and subject to excessive criticism. They were not to take breaks unlike the waiting staff.
2.Their terms and conditions of employment, in particular the rules of remuneration were changed many times.
3.They were not allowed to speak Polish at work in the kitchen.
4.They were subject to more stringent conditions than other employees such as wearing of hairnets, wearing of jewellery, nail varnish etc.
I am satisfied that such differences in treatment as were experienced by the complainants were due to their positions as kitchen staff, vis-a-vis waiting staff and not due to their nationality. Other nationalities in the kitchen had the same terms and conditions as they had. On the question of the language policy I am satisfied that the imposition of an English only policy is justified in this case and is not discriminatory if applied uniformly.
6. Decision
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. I find that:
1. I have no jurisdiction to hear the complaints of dismissal under the Acts because the Complainants have already got a recommendation under the Unfair Dismissals Acts.
2. The Respondent did not discriminate against the Complainant on the ground of race pursuant to section 6(2) of the Acts in terms of their conditions of employment contrary to section 8 of the Acts.
3. The Respondent did not victimise the Complainants.
Accordingly, I find in favour of the Respondent in this matter.
_________________
Niall McCutcheon
Director
23 June 2015.
Footnotes
[1] Arturs Valpeters v Melbury Developments [2010] 21 E.L.R. 64.