DEC-E2016-081

EMPLOYMENT EQUALITY ACTS

DECISION NO. DEC-E2016-081

PARTIES

Eric Miengue (Represented by Ruadhán Mac Aodháin, BL instructed by MacGeehin Toale Solicitors) Complainant

AND

Kilmainham Square Hotel Ltd t/a Hilton Dublin Kilmainham (Represented by Michael McNamee, BL instructed by Aidan McGrath of DAS solicitors) Respondent

Date of issue:    30  May 2016

1. Introduction: 1.1 This complaint concerns a claim of discrimination, including discriminatory dismissal, harassment and victimisation on the grounds of race. The complainant is a commis chef and the respondent operates a hotel in Dublin.

1.2 The complainant referred a claim to the Director of the Equality Tribunal on the 14th August 2014 under the Employment Equality Acts. On the 22nd September 2015, in accordance with powers under section 75 of the Employment Equality Acts, the Director delegated the case to me, Kevin Baneham, 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 began. The parties made submissions in advance of the hearing and attended the hearing on 1st October 2015.

1.3 The complainant was represented at the hearing by Ruadhán Mac Aodháin, BL, instructed by Erin Brogan of MacGeehin Toale Solicitors. An interpreter assisted the complainant in giving evidence. The respondent was represented by Michael McNamee, BL instructed by Aidan McGrath of DAS solicitors. The HR manager attended on behalf of the respondent.

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

2. Summary of the complainant’s case: 2.1 The complainant commenced his employment as a commis chef in the respondent hotel in September 2012 and terminated his employment there on the 28th June 2014. He claims that he was subjected to discrimination in the workplace and harassment by the Head Chef; he also says that he was victimised by the respondent in seeking to pursue his complaints. He supplemented the contents of his complaint with a witness statement on the 21st May 2015 and legal submissions made on his behalf on the 18th September 2015. At the hearing, the complainant submitted documentation related to the outcome of the respondent’s investigation into the incident of the 28th June 2014, which he had obtained via a data access request to the respondent.

2.2 In documentation, the complainant submitted the correspondence exchanged by the parties. In his letter of resignation of the 12th May 2014, the complainant indicates that he will leave the respondent on the 10th July 2014, citing his wish to move to improve his career. A document entitled “employee termination form” indicated that the complainant’s final day of employment is the 28th June 2014 and that holidays due would be confirmed by finance. The complainant includes his letter of complaint regarding the events of the 28th June 2014, where he describes the Head Chef’s aggressive and racist language to him. The last sentence of the letter refers to the complainant having taken all necessary steps to bring to light an issue that has been going on for almost six months. The respondent provides its letter of the 3rd July 2014, stating that it is very concerned by the contents of the letter and that it will be dealt with under the grievance procedure. The complainant includes three written complaints about the behaviour of the Head Chef, relating to the incidents of the 22nd March 2014, the 27th April 2014 and the 26th May 2014 and sent to the respondent on the 10th July 2014. They state that the Head Chef used insulting language to the complainant in an aggressive way, and that he had contacted the HR Manager. The complainant submits the respondent’s E.E.3 responses, dated the 30th June 2014. This denies that the complainant was abused with racist language and that he resigned of his own free will. It states that the March incident was only reported to the respondent at the July meeting and that the complainant’s letter relating to the March incident was only sent to the respondent on the 10th July 2014. It denies discrimination and that the complainant was dismissed. Also submitted is an email from the HR manager to a senior manager, giving the conclusions of the investigation into the incident of the 28th June 2014. This states at 1) the complainant’s performance was substandard and the Head Chef sought to raise this, 2) the Head Chef shouted and verbally abused the complainant, 3) there is no evidence to confirm that the Head Chef racially abused the complainant and 4) the Head Chef’s behaviour should be addressed in a counselling session, if not a formal disciplinary meeting. The respondent submitted witness statements from kitchen staff in relation to the events of the 28th June 2014. Also included are the minutes of the meeting of the 8th July 2014. The respondent submitted a statement from the Head Chef. This raises issues regarding the quality of cooked breakfast food on the 28th June 2014. He acknowledged using bad language, but denied calling the complainant names on that day and denied the use of racist language. The respondent also provided to the complainant performance reviews from 2012.

2.3 At the hearing, the complainant gave a précis of his case, stating that it was a claim of discrimination on the grounds of race. The complainant had been subjected to harassment in the workplace and was left with no choice but to resign his employment with the respondent; the claim includes a claim for constructive dismissal. The respondent failed to take preventative measures as per the Codes enacted pursuant to the Employment Equality Acts. It was submitted that regard should be had to the result or outcome of this failure as opposed to the matter of the respondent’s intention.

2.4 In evidence, the complainant outlined that he commenced employment in September 2012 and that the Head Chef began working with the respondent in November 2013. He was paid €384.93 gross per week. He outlined that he had a good relationship with the previous Head Chef and described the workplace as being like “a family”. He said that the employee handbook had been given to him at this time, but its contents, in particular the grievance procedure and discrimination policy, were not explained to him.  When the new Head Chef started work, he was treated differently. On the Head Chef’s first day of work, he cursed at the complainant saying that he was lazy; the complainant did not make an issue of this incident.

2.5 In respect of the incident of the 22nd March 2014, the complainant said that he was taking a rest break when a colleague did not fry peanuts in the correct way. This was observed by the Head Chef who summonsed the complainant. The Head Chef asked who was responsible for the error and the complainant named the colleague responsible. Despite this, the Head Chef commenced insulting and berating the complainant, who asked that they continue their conversation in the privacy of the Head Chef’s office, but the Head Chef did not desist. The complainant said that he became very upset and took a break in the changing room. He outlined that the motivating factor behind the Head Chef picking on him was race.

2.6 Addressing the issue of the 27th April 2014, the complainant said that the Head Chef entered the kitchen and greeted everyone else but him. He said that he was preparing food on the salad bar and after taking rubbish outside, the Head Chef returned with the rubbish and slammed it on the worktable, saying that this is not how “we wash here”. After this interaction, the complainant went home and later made a complaint. This was referred to the HR manager, who said that she would speak with the Head Chef. The HR manager did not enquire as to whether there were other incidents and did not make reference to the grievance procedure or the employee handbook. The Head Chef then approached the complainant to say that such an incident would not happen again.

2.7 The complainant said that the Head Chef frequently verbally abused him. This would often occur at that start of his working day when, as soon as he entered the kitchen via the lift, the Head Chef would insult him. The complainant outlined that the Head Chef would pick on foreigners and he listed many of these colleagues who left the respondent’s employment due to this behaviour. The Head Chef would go easy on Irish staff in the kitchen. The complainant said that despite his complaint after the incident of the 27th April 2014, problems re-emerged with the Head Chef. He called the complainant “lazy” and “slow”. Asked whether he complained again, the complainant said that the HR manager was aware of everything and another hotel manager was a friend of the Head Chef.

2.8 In respect of the letter of resignation, the complainant said that he drafted this on the 12th May 2014, but did not give it to the respondent until the 26th May 2014. He handed it to the HR manager and had expected her to ask why he was leaving, but she did not do so. Two days later the Head Chef approached him to say that the notice period was too long and that the complainant should leave earlier. The Head Chef was aggressive in this conversation. The complainant said that he did not mention the harassment and other allegations of this complaint in the letter of resignation as he was afraid of the damage this would do when he was looking for alternative employment. He clarified that he did not seek a written reference from the respondent but had expected prospective future employers to contact the respondent when applying for other work.

2.9  The complainant described another incident on the 26th May 2014 where the Head Chef, the HR manager and all the kitchen staff attended a meeting together. It was not common to have such meetings. The complainant raised the issue of rest breaks for kitchen staff and the Head Chef began to remonstrate aggressively to him; the HR manager signalled to the Head Chef to calm down. This led to the Head Chef insisting on changing his role to that of the breakfast chef and his hours changed accordingly and the complainant said that he adapted to this different role well.

2.10 In respect of the 28th June 2014, the complainant said that he was working the breakfast shift when the Head Chef entered the kitchen at about 10.30am. The Head Chef was immediately very aggressive and shoved the complainant. He raised issues regarding the cooking of breakfast items and an order delivered to a hotel room. The complainant went to leave the kitchen and the Head Chef was screaming at him. He went into the male changing rooms and the Head Chef followed. Here the Head Chef continued to swear at him and used racist language. These words included “f***ing b**** good for nothing”, “b**** d*******”, “b**** c***” and many other expletives. The complainant said that he then left the respondent workplace and went to the Gardaí to make a statement. They informed him that as the hotel was not a public place, it was not a criminal act; they referred him on to another body. He also wrote a letter of complaint to the respondent that he sent to both the HR Manager and the Hotel Manager. Following this, he met with the HR Manager and an assistant manager and gave an outline of the events of the 28th June 2014. He was asked whether he would return to the workplace and he replied that he would not do so for a million euro. He told them that there had never been problems in the kitchen before these incidents and that the Head Chef needed to change. He said that the Head Chef had pushed him over the edge. 

2.11 In cross-examination, the complainant agreed that he had received documentation at the commencement of his employment and that he had signed for them. They included his contract of employment, a job description and an employee handbook. He confirmed that he attended an orientation day and said that the contents of the documents were not explained to him. It was put to him that in April 2014, he was aware that he could complain to the HR Manager; he replied that he only became aware of this because colleagues suggested it to him. It was put to the complainant that he had only raised the March 2014 incident in July 2014; he accepted this but said that he did not know whom he could complain to as he thought that the Head Chef was the boss. It was put to the complainant that the March incident was one of abuse and not racist abuse and that no racist language was used; he replied that while there were no racist words used, the language was unacceptable and that the Head Chef was picking on him because he was racist. It was put to the complainant that this was his opinion and that the Head Chef was not Irish; the complainant replied that the Head Chef was white and European. It was put to the complainant that the kitchen was multi-racial; the complainant agreed and said that many of the foreigners left because of the Head Chef.

2.12 In relation to the April incident, it was put to the complainant that all of the records of this complaint do not refer to race; the complainant said that the Head Chef picked on him and abused him. The complainant was asked why he did not say to the HR Manager that the Head Chef’s abuse of him was racially motivated; the complainant replied that he felt that complaining to her was not worth it, she knew everything that went on in the kitchen and did not act when the other chefs left. It was put to the complainant that the HR Manager would have done more had she been told of the racial element to the abuse; the complaint asked why the HR manager had not acted when the other foreign chefs left. It was put to the complainant that the HR Manager had asked quickly to raising his complaint with the Head Chef and that the HR manager had followed up to see if everything was okay; the complainant acknowledged this. The complainant was asked why he had not previously raised the issue of the treatment of other kitchen staff; he replied that he was dealing with his own business and did not want to interfere in theirs.

2.13 In respect of the letter of resignation, the complainant said that he drafted the letter as a result of the Head Chef’s behaviour towards him, in particular at the staff meeting where he had raised the issue of rest breaks. He acknowledged that he had not made any allegation of racism prior to submitting the resignation. In relation to the contents of the letter, he said that this was the first time he had drafted such a letter and that he was afraid of being left with a bad reference. The complainant agreed that he had received a registered letter following his June complaint and that he attended a meeting with the respondent. He agreed that the minutes taken by the respondent of the 8th July 2014 meeting was fair. He agreed that he had said that the Head Chef had never previously used racist words but that there were many ways a person could abuse you and that they would not use racist language all the time. Asked whether the HR Manager had sought to help him, the complainant said that she should have asked him to explain his resignation and that she did not ask him to reconsider. It was put to him that he left without waiting on the outcome of the respondent’s investigation; he replied that the HR manager never told him the outcome. It was put to him that he was unavailable and that he had asked not to be contacted; he replied that he had sought to contact the HR manager by phone to follow up on his P45 and holiday pay but could not reach her. She always had his address and email. He said that he would have attended any follow up meetings organised by the respondent but none took place. It was put to him that he should have remained in employment to see the investigation through and the Head Chef disciplined. The complainant replied that it was impossible for him to stay because of the abuse and the stress. It was put to the complainant that the respondent could not have done anything to make him stay; he replied that the respondent did not care as the Head Chef was making money for the respondent. It was put to him that the respondent did care and that he should have stayed; the complainant did not accept this.

2.14 In further evidence, the complainant said that he received his P45 in September 2014 and had also received holiday payment. He provided details of his current employment. He also said that he did not have a job lined up when he drafted the letter of resignation. In closing submissions, the complainant outlined that he has met the burden of proof under the Employment Equality Acts by establishing a prima facie case of discrimination. This was established because the complainant had been picked on and repeatedly abused by the Head Chef and this included the use of racist language. This evidence was uncontroverted and events should not be seen in isolation. It was not necessary for the complainant to show that racist language was used on every occasion and it was proper that a finding be made that racist language was used during the June incident and inferences drawn regarding the previous incidents.

2.15 The complainant outlined that the respondent had failed to meet the defences provided in sections 14A(2) and 15(3) of the Acts as they had failed to take all reasonable steps. They had not taken appropriate preventative steps, for example ensuring that the complainant fully understood the relevant procedures or that they be explained to him. The employee handbook does not have a harassment procedure for employees to avail of. The Code on Harassment provides that managers should receive appropriate training and the HR Manager had not been so trained. There was no dedicated procedure for harassment complaints, as required by the code and no clear and precise procedure. The complainant relied on the dicta of Delahunt J in Atkinson v Carty [2005] E.L.R. 1: “The failure of the defendants to have in place adequate procedures renders them liable and by reason of their failure to fulfill their statutory obligations they are responsible and cannot plead immunity from same simply because the Plaintiff failed to make a complaint.” Furthermore, the complainant relies on A Worker v A Hotel [2010] E.L.R. 72, Piazza v The Clarion Hotel DEC-E-2004-033 and A Worker v An Engineering Company DEC-E-2008-038.The complainant also outlined that the respondent had failed to carry out a proper investigation into this matter and this should have involved addressing the departure of staff from the respondent kitchen during the tenure of the Head Chef. It was proper to draw inferences from this failure. Summing up the case, the complainant outlined that he had established the necessary proofs for both discriminatory dismissal and harassment. It was further submitted that the failure to advance the complainant’s grievance of the 28th April 2014 constitutes victimisation.

3. Summary of the respondent’s case: 3.1 In advance of the hearing, the respondent made legal submissions and presented written evidence in relation to this complaint. At the outset of the hearing, the respondent gave a précis of its case, stating that the only element of alleged race and racial discrimination occurred on the 28th June 2014, at which time the complainant left his employment. The respondent exhibits the complainant’s contract of employment, which refers to the respondent’s grievance procedure. It also exhibits the employee handbook. This refers to the employee to their immediate supervisor/manager to discuss a problem or situation. The document also refers to the “special responsibility” of managers and supervisors to “listen and respond” and to “make themselves available to employees”. The handbook contains a bullying and harassment policy that states that the respondent is committed unconditionally to the prevention of any form of bullying or harassment and to ensure that complaints are “immediately, properly and fully investigated.” It provides definitions of “bullying/harassment” and this includes behaviour which unfairly discriminates … or results in an employee being offended. It gives examples of shouting or swearing at a colleague, aggression or name calling. It further provides a sexual harassment policy and states that such harassment is a dismissible offence. The handbook’s grievance procedure outlines that complaints of harassment should be dealt with under that procedure. The respondent disciplinary policy includes within the category of gross misconduct acts of harassment, victimisation and other unlawful discrimination.

3.2 At the hearing, the HR Manager confirmed that the complainant had participated and also signed receipt of the employee handbook and other documents. She said that his proficiency in English was good enough to understand the documents. She confirmed that the March incident was only raised with her in July. In relation to the April incident, she said that the complainant had thrown away the best bits of lettuce and the Head Chef criticised him for this. The complainant had raised with her the behaviour of the Head Chef and she, in turn, raised this with the Head Chef. She informed him that his behaviour was inappropriate. He agreed to modify his behaviour.

3.3 The HR Manager confirmed that she received the complainant’s letter of resignation towards the end of May 2014. She said that the letter took her by surprise and because the Head Chef was the complainant’s line manager, she gave it to him. They discussed that the notice given in the letter was longer than required in the contract. In relation to the team meeting mentioned by the complainant, she said that she does not recall any such meeting and that she attends many meetings during her work.

3.4 In respect of the June incident, the HR Manager said that she became aware of this when she was next in work. She sent a registered letter to the complainant and wished to investigate the complaint. She outlined that she wanted to adopt a two-pronged approach, investigating the two issues of abuse and racial abuse. She said that she had two telephone calls with the complainant either side of the meeting of the 8th July 2014 and he asked her not to contact him further. She had offered to inform him of the outcome of the investigation and whatever action was taken. She did not contact him again as she did not want to antagonise him. The HR Manager outlined that the findings of the investigation were sent to a hotel manager who subjected the Head Chef to the first stage of the disciplinary process, where he received a warning. Had the complainant wished, he would have been informed of the outcome and could also have appealed this outcome.

3.5 In cross-examination, the HR manager explained that she had an advisory role rather than a supervisory one. She gave details of her HR qualification and said that she had been given additional training by the respondent. She said that she had not been given specific training relating to discrimination. She said that she had given the employee handbook and other documents to the complainant, but not gone through them in detail with him. She was not aware of the complainant’s reading ability. It was put to her that the harassment policy does not provide a procedure for an employee to raise any such discrimination issues; she replied that those issues were dealt with by way of the grievance procedure. It was put to the HR Manager that in investigating the June incident, she should have explored whether there was a pattern behind the Head Chef’s behaviour; she said that she was looking into this one matter and the April incident had been closed. It was put to her that given the serious nature of the allegation of racist abuse, she should have investigated the other incidents; she replied that her role at the meeting was to take minutes while another manager led the questioning. In relation to the April incident, she said that she did not keep a record of the meeting with the Head Chef and does not recall whether she mentioned the grievance procedure to the complainant. She said that she did not remember the early May meeting referred to by the complainant and said that she discussed his notice period with the Head Chef, agreeing that he did not need to work until the 10th July 2014. She did not believe it necessary to investigate the reasons around the notice.  She said that the atmosphere in a kitchen was dictated by the personality of the Head Chef. In relation to the outcome of the investigation, she outlined that the respondent had decided to invoke the first stage of the disciplinary process and that the Head Chef had been required to attend counselling and the warning was added to his file. The April incident was not considered in deciding the sanction. She outlined that she believed other head chefs had been disciplined in her time with the respondent. She said that the last occasion she had spoken with the complainant or that there had been any attempt by one to contact the other had been the telephone call after the 8th July 2014 meeting where the complainant asked not to be contacted further.

3.6 In closing submissions, the respondent outlined that the claim rested on the complainant being able to establish a pattern. This was not achieved as there had been no reference to race in the incidents in March, April and May and they were not uncommon events in a kitchen. There must be credible evidence of discrimination and it beggars belief that if the complainant believed that the Head Chef was acting in a racist manner, that he did not complain of this. The respondent outlined that it has policies and procedures in place and that it was not credible that the complainant did not know who to complain to in May 2014. He had received and signed for the employee handbook and other documentation. Those policies were implemented after the June incident but the complainant “jumped ship” before their conclusion and the implementation of the findings. It was not an issue that the Head Chef was not present to give evidence regarding whether racist words were used in the June incident; the respondent had discharged its obligation by investigating and acting on the complainant’s allegation. The conclusion of the investigation was that the evidence did not support the allegations of racism, although findings were made in relation to the abusive language. The employer could not have done more and the respondent said that the complainant was not credible or consistent in his evidence. While the Head Chef may have been a bully, there was no evidence of racism. The respondent was not given an opportunity to finish the investigation and that an employer must be given an opportunity to rectify matters before an employee can claim constructive dismissal. In this case, the complainant raised his complaint of racism but left without providing an opportunity for the respondent to act.

4. Findings and reasoning: 4.1 The complainant, a commis chef, outlines that he was subjected to bullying and harassment by the respondent’s Head Chef. He refers to various incidents, for example occurring on the 22nd March 2014, 27th April 2014, 26th May 2014 and the 28th June 2014. The complainant says that the Head Chef used racist language to him on one occasion, i.e. the 28th June 2014. He outlines that all of the Head Chef’s treatment of him was motivated by racism. The complainant outlines that the respondent did not have adequate harassment procedures in place and the procedures in place were not adequately explained to the complainant. The complainant outlines that he sought to contact the HR Manager after the 28th June 2014, but could not reach her. The complainant claims discriminatory dismissal, harassment and victimisation.

4.2 The respondent denies the claim. It asserts that it had adequate policies and procedures in place and they had been brought to the attention of the complainant. The complainant complained about the incidents of April and May and they were not related to race. The respondent outlines that it sought to investigate the June incident but the complainant had resigned from his employment and did not assist the investigation. It states that the investigation led to the Head Chef being subject to a disciplinary sanction for his use of abusive language. It outlines that there was no evidence of racism. The respondent submitted that the claim should not succeed as the complainant had not established a pattern of racist behaviour and the respondent, having sought to investigate the June incident, was entitled to rely on the section 14A(2) defence to harassment and the section 15(3) defence to the employer’s vicarious liability for the alleged Head Chef’s discriminatory act.

4.3 Section 14A of the Employment Equality Acts addresses harassment and provides as follows: “(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, …  (b) without prejudice to the generality of paragraph (a)—  (i) such harassment has occurred, and (ii) either— (I) the victim is treated differently in the workplace or otherwise in the course of his or her employment by reason of rejecting or accepting the harassment, or (II) it could reasonably be anticipated that he or she would be so treated 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 (whether or not subsection (1)(b) also applies), to prevent the person from harassing or sexually harassing the victim or any class of persons which includes the victim, and (b) in a case where subsection (1)(b) applies, to prevent the victim from being treated differently in the workplace or otherwise in the course of the victim's employment and, if and so far as any such treatment has occurred, to reverse its effects. … (6) Where subsection (5) applies in relation to a victim, subsection (1) shall have effect as if for “in relation to the victim's conditions of employment” there were substituted “contrary to section 11”, or, as the case may be, section 12.

(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, (b) 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. (c) 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.”

4.4 Section 15 of the Employment Equality Acts addresses the vicarious liability of employers for the conduct of employees. It provides as follows:  “(1) Anything done by a person in the course of his or her employment shall, in any proceedings brought under this Act, be treated for the purposes of this Act as done also by that person’s employer, whether or not it was done with the employer’s knowledge or approval.  …  (3) In proceedings brought under this Act against an employer in respect of an act alleged to have been done by an employee of the employer, it shall be a defence for the employer to provide that the employer took such steps as were reasonably practicable to prevent the employee- (a) from doing the act, or (b) from doing in the course of his or her employment acts of that description.”

4.5 Harassment based on any of the discriminatory grounds is covered by the Code of Practice on Sexual and Harassment in the Workplace (S.I. 208/2012). The Code outlines “Prevention is the best way to minimise sexual harassment and harassment in the workplace. An effective policy, and a strong commitment to implementing it, is required. The purpose of an effective policy is not simply to prevent unlawful behaviour but to encourage best practice and a safe and harmonious workplace where such behaviour is unlikely to occur. This policy is likely to be more effective when it is linked to a broader policy of promoting equality of opportunity. Employers should adopt, implement and monitor a comprehensive, effective and accessible policy on sexual harassment and harassment.”  The Code further provides that a policy addressing harassment should emphasise the importance of management “The policy should state that management and others in positions of authority have a particular responsibility to ensure that sexual harassment and harassment does not occur and that complaints are addressed speedily. The policy should state that in particular management will: • provide good example by treating all in the workplace with courtesy and respect • promote awareness of the organisation’s policy and complaints procedures • be vigilant for signs of harassment and take action before a problem escalates • respond sensitively to an employee who makes a complaint of harassment • explain the procedures to be followed if a complaint of sexual harassment or harassment is made • ensure that an alleged perpetrator is treated fairly • ensure that an employee making a complaint is not victimised for doing so • monitor and follow up the situation after a complaint is made so that sexual harassment or harassment does not recur.” The Code provides that the policy should include a complaints procedure, as well as the name of a competent person to address concerns raised by an employee.

4.6 The complainant relies on Atkinson v Carty [2005] E.L.R. 1, a decision of Delahunt J. in the Circuit Court. In Atkinson, the plaintiff sought damages for breach of contract, breach of duty, including statutory duty, relying on the failure of the defendants to provide any safe or proper systems of work pursuant to the Safety, Health and Welfare at Work Act. The Court held that the plaintiff had been subject to a prolonged period of sexual harassment and awarded €139,000 in damages, reduced by 25% as contributory negligence on the part of the plaintiff in not complaining sooner. As identified by the complainant, the Court in Atkinson had particular regard to the absence of any harassment policy in circumstances where the harasser of the plaintiff was a close friend of the respondent.

4.7 The complainant also relied on the A Worker v A Hotel [2010] E.L.R. 72 where the Labour Court, following Mitchell v South Health Board [2001] E.L.R. 201, held that it fell on a claimant to prove primary facts in order to raise an inference of discrimination. Assessing the evidence before it, the Court held that the perpetrator of harassment did not treat male colleagues in the same way as the female victim. The Court assessed the defence available to an employer to claims of harassment in the following terms “This suggests that an employer must be conscious of the possibility of sexual harassment occurring and have in place reasonable measures to prevent its occurrence as well as policies and procedures to deal with such harassment where it is found to have taken place. This requires the employer to show, at a minimum, that a clear anti-harassment or dignity at work policy was in place before the harassment occurred and that the policy was effectively communicated to all employees.”

4.8 The first issue to address in this report are the conflicts in evidence between the parties. One conflict relates to the staff meeting of the 26th May 2014 where the complainant said he was verbally abused by the Head Chef, while the HR Manager, said by the complainant to be in attendance, did not remember such an incident. I find that this incident occurred as outlined by the complainant. He gave concise evidence relating to the May meeting, while the HR manager did not have a sure recollection of any such event. The second conflict relates to whether racist words were used by the Head Chef to the complainant on the 28th June 2014. The complainant gave evidence of the words used. The respondent says that its investigation concluded that there was no evidence that such words had been uttered by the Head Chef. Having considered the evidence of the parties, I resolve this conflict in favour of the complainant. Again, he gave concise evidence of the incident where the Head Chef used insulting and derogatory racist language to him. The Head Chef was not present to contradict this (and the respondent stated that he is no longer in its employment). The third conflict arose between the evidence of the complainant and that of the HR Manager regarding their contact after the meeting of the 8th July 2014. I find as fact that the complainant sought to make contact with the HR Manager by telephone. I do not find that the complainant asked not to be contacted further. I base these findings on the evidence delivered at the hearing and because the complainant attended the meeting of the 8th July 2014, even though he had already left the respondent’s employment. If he was simply walking away from the respondent, why would he have gone back to such a meeting?   4.9 I have found as fact that racist words were used by the Head Chef and were directed at the complainant in an aggressive way. This occurred on the 28th June 2014. Having made this finding of fact, it follows that it is conduct that “has the purpose or effect of violating a person's dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.”  Two questions follow this finding. First, is the respondent entitled to rely on the two defences identified by the parties. The second is how the events of the 28th June 2014 fit in with the other incidents reported by the complainant. I find that the respondent is not entitled to rely on the defence to vicarious liability provided in section 15(3), nor the defence to harassment provided in section 14A(2). I reach this finding because it is clear the Head Chef was acting in his capacity as manager of the kitchen when he remonstrated with the complainant about the quality of his work; this is acknowledged in the finding made by the respondent in the investigation of this incident where it held “the complainant’s performance was substandard and the Head Chef sought to raise this.” There was a great deal of evidence regarding the policies provided to the complainant, but less emphasis on the policies or training provided to the Head Chef, as a member of management. I was struck by the evidence of the HR Manager that “the atmosphere in a kitchen was dictated by the personality of the Head Chef.” I also note the emphasis in the respondent’s policy documents and in the Code of Conduct on the “special responsibility” of managers. According to the respondent’s own evidence, it was aware of the April incident. While the inappropriateness of the Head Chef’s behaviour was addressed, I consider that this was a light touch response given the seriousness of the incident and the seniority of the Head Chef. The Code of Conduct emphasises the need for vigilance on the part of an employer. This is especially relevant in this case from April onwards; the employer knew of the difficulties between the Head Chef and the complainant, but little was done to monitor the situation and ensure that there was no reoccurrence. This duty of vigilance arises even though there was no explicit racist element to the events prior to June. The April incident involved degrading and humiliating treatment of the complainant, which escalated in June to racist degrading and humiliating treatment. In respect of the June incident, the witness statements and the Head Chef’s own statement disclose that the Head Chef humiliated the complainant in the open kitchen, using bad language for example “useless c***”. The complainant said that the Head Chef used racist language away from witnesses. For some reason, this complaint was dealt with by the respondent as a grievance when its own policy provides that it should be dealt with under the harassment procedure. It is also striking that the respondent states that there is “no evidence” that racist words were used when it had the complainant’s statement to this effect. The respondent does not explain how it resolved the conflict in what happened in private in the Head Chef’s favour. The complainant contends that it is possible to assign a racist motive to the earlier incidents of March, April and May even though racist language was only used in June. I believe that it goes too far to read this into the events; there must be some fact arising in the earlier incidents to suggest that they were based on race. The complainant refers to adverse treatment meted out by the Head Chef to other non-Irish staff, but there is no additional corroboration of the race element to the treatment of these third parties.

4.10 There are three elements to the complainant’s claim: victimisation, harassment and (constructive) discriminatory dismissal. I find that the complaint in relation to victimisation does not succeed. The complainant outlined that this arose because of the manner in which the April incident was investigated. I have referred to issues arising in the respondent’s investigation of this incident, but these issues cannot be said to be adverse treatment as required for victimisation to have occurred. Harassment can arise from a single incident and it is clear arising from the above findings that the events of the 28th June 2014 amount to harassment by the Head Chef, for which the respondent is vicariously liable. I find that the claim of constructive discriminatory dismissal can succeed only in relation to the events of the 28th June 2014, when the complainant had already tendered his resignation and was working out his notice to the 10th July 2014. I find that the complainant cannot retrospectively infer a race element to the earlier incidents in the manner submitted. While I accept the complainant’s evidence that he submitted the letter of resignation because of the Head Chef’s behaviour, this cannot amount to a discriminatory dismissal because of the absence of a racial element in the earlier incidents, i.e. prior to the 28th June 2014.

4.11 I have found that the respondent is vicariously liable for the racial harassment carried out by the Head Chef against the complainant and leading to the complainant having to leave his employment during the notice period. This breach of the Employment Equality Acts merits an award of compensation and taking the offensive nature of the words used, and that the failure of the respondent to exert appropriate vigilance or to address the behaviour, an award of €10,000 (approximately 6 months’ salary) is appropriate. 5. Decision: 5.1 In accordance with section 82 of the Employment Equality Acts, I  order the respondent to pay the complainant €10,000 in compensation or  the harassment endured and the respondent’s failure to prevent or  address this behaviour.

5.2 This award represents compensation for infringement of the complainant’s rights under employment equality legislation in relation to discrimination and does not include any element relating to remuneration.

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Kevin Baneham

Adjudication Officer / Equality Officer

      30  May 2016