Complainant

Respondent

Anonymised Parties

A Worker

Fast food outlet

Representatives

John Madden BL

 Peninsula Group Limited

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00011190-001

08/05/2017

The complainant contends that she was discriminated against on the grounds of gender and that she had been subjected to sexual harassment in her workplace.

Complaints of discrimination on grounds of disability and victimisation were withdrawn at hearing.

The Complainant worked in the Take Away from September 2013. She had no issue with her employment until the current owners took over in October 2016. She stated that she was harassed and discriminated against by the owner and that he degraded her, undermined her and treated her in a discriminatory manner, which treatment would not, in her submission have been afforded to male staff.   She stated that she used to have 25 – 30 hours per week at the beginning of her employment and had many responsibilities including key holder, working on her own, handling cash and taking orders. She stated that by the time she left her employment she had been demoted to cleaning and answering the phone. By this time, she said she felt extreme anxiety and stress and was suicidal.   She recounted incidents over the last four months of her employment which she felt left her with no option but to leave her job. These included: being potentially forced to share a room with a much younger staff member when the staff were being brought out for Christmas 2016, being shouted at regarding the method of cooking and the taking of orders in December 2016, and being ignored in January 2017 when she gave the employer the Tip Jar. The Complainant also referred to an incident in February 2017 when a customer was short of money for his bag of chips and the employer told the complainant to take 50p worth of chips off his order. The Complainant alleges that the following week, the employer walked around the shop with a raw sausage hanging from his trousers and that she found this particularly offensive and disgusting behaviour.   She stated that he was regularly making offensive dirty jokes and remarks. She stated that on the last day of her employment, the staff were going over and back to the local pub in a darts competition, and that as the owner shouted at her she could no longer stand the strain and left her job.

The Respondent strongly denies all allegations in the Complainants complaints. He agrees that on occasions he had to tell staff in a strong manner that they must call back orders. He also stated that he would have to instruct the Complainant on issues such as cooking and using chopping boards purely in the essential interests of health and safety. He and his wife (in whose name the business is now in) arranged for a Christmas outing in Galway for staff. The Complainant had stated that she would not be going due to personal reasons and he could not now understand her point about not wanting to share a room, as it was not going to arise. The Respondent stated that there was some workplace banter with sexual innuendos but that it was the Complainant who started the incident with a pudding and he reciprocated with the sausage. He cannot recall any time when he deliberately ignored the Complainant, however it could have been that he was busy at the time.

In this case, due to the sensitivity of certain information, I have decided to anonymise the parties.

The Complainant worked as a Counter Assistant in a take away from September 2013 to April 2017. She alleges that she suffered discrimination and sexual harassment in the period 6th October 2016 to 3rd April 2017, at which time she left her employment.

The applicable law is Section 6 and Section 14 (A) of the Employment Equality Acts 1998 -2015.

Section 6 (1) 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 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) (in this Act referred to as the ‘‘discriminatory grounds’’)”.

Section 6(2)(a) provides that “as between any two persons, the discriminatory grounds are, inter alia: (a) that one is a woman and the other is a man (in this Act, referred to as ‘‘the gender ground’’),”

In order for the Complainant’s case of discrimination to succeed, she must first discharge the burden of proof, or the “prima facie” case from which it might be inferred that discrimination may have occurred. It is then, and only when a prima facie case has been established, that the burden of proof shifts to the employer. The relevant Section is Section 85A of the Employment Equality Acts 1998-2015 which sets out the burden of proof as follows:

“(1) Where in any proceedings facts are established by or on behalf of a Complainant from which it may be presumed that there has been discrimination in relation to her or her, it is for the Respondent to prove the contrary.”

In this instance case, many complaints were outlined at the hearing by the Complainant regarding incidents where the employer was stated to have shouted at staff. By the Complainant’s own evidence the behaviour was directed at all staff and as such, while it may have been perceived as offensive, I find it does not constitute a prima facie case of discrimination against the Complainant and in that case this section of her complaint fails.

In relation to the Complainant’s complaint that she was sexually harassed in her workplace, I find as follows:

The applicable law is Section 14 (A) of the Employment Equality Acts which provides the definition as follows:

14 (A) (7) (a) (ii). “references to sexual harassment are to any form of unwanted verbal, non-verbal or physical conduct of a sexual nature, being such conduct which in either case has the effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person”.

Section 14(A) provides that where harassment or sexual harassment has occurred,

“the harassment or sexual harassment constitutes discrimination by the victims employer in relation to the victims conditions of employment”.

In this instant case, there was uncontested evidence that a particular incident occurred in February 2017. The employer considered this was a reciprocal gesture on his part to a remark made by the Complainant at the time. However, as found by the Labour Court in EDA163 A Store v A Worker in 2016, “it is the unwanted nature of the conduct which distinguishes sexual harassment from friendly behaviour”.

I accept the Complainant’s evidence that the employer partook in an incident with sexual innuendo which had the effect of violating her dignity and this section of her complaint succeeds.