ADJUDICATION OFFICER DECISION
CORRECTION ORDER ISSUED PURSUANT TO SECTION 88(2) OF THE Employment Equality Act 1998.
This Order corrects the original Decision issued on 18/09/2019 and should be read in conjunction with that Decision.
Adjudication Reference:
Parties:
| Complainant | Respondent |
Anonymised Parties | A Restaurant Worker | A Restaurant |
Complaint(s):
Act | Complaint Reference No. | Date of Receipt |
CA-00027426-001 |
Date of Adjudication Hearing:
Workplace Relations Commission Adjudication Officer:
Procedure:
In accordance with Section 79 of the Employment Equality Acts, 1998 – 2015 and following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
Background:
The complainant applied for the position of part time waiter or barista advertised by the respondent in January 2019 and was offered a position. The pay for the position was €10.50 per hour for 20 hours per week. The complainant’s case is that the respondent withdrew the offer of employment made to her after her trial period because of her disability. The respondent rejects this contention and states that an employee in another branch applied for the job and was more suitable because he could work full-time. |
Summary of Complainant’s Case:
The complainant has a congenital birth defect of a cleft lip and palate. She said that she applied for positions advertised in January 2019 of part-time barista or waiter at the respondent’s new restaurant venue which was to open shortly. Following an initial interview with the manager (Ms. A), the complainant was interviewed again by the same manager, Ms A, and the head chef. She said that she was offered the position of deli counter assistant by email dated the 21st January 2019 and she was told that she would commence work in the first week of February 2019. The complainant said that she accepted the offer of employment on the 22nd January 2019. She was then asked to do a trial shift in one of the other restaurants owned by the respondent and she completed it on 31st January 2019. The complainant said that she then received an email from Ms A thanking her for attending the trial shift and asking about the hours she was available for work. The complainant provided the hours she was available for work on the 4th February 2019. In a further email of the 11th February to the complainant, Ms A informed her that the opening of the new restaurant had been delayed a week. On the 20th of February Ms A emailed the complainant to say the position she had accepted required a full-time staff member and she would not be rostered for work and she was not offered any other position. The complainant submits that she was discriminated against as the roles she applied for were entry level positions and she was more than qualified for the positions advertised. She said that she has a first -class honours degree in Culinary Arts which included modules on all aspects of food preparation and that she is doing an MA in Gastronomy and she sees no reason other than discriminatory reasons why she was not qualified for the part-time roles advertised by the respondent. She believes because of her disability the respondent decided after her trial not to continue with the employment and withdrew the offer. |
Summary of Respondent’s Case:
The respondent stated that they were opening a new restaurant and recruiting staff for all areas of the business. The manager, Ms A, was responsible for the recruitment. The respondent accepted that the complainant was offered employment, but that offer was withdrawn. The respondent’s case is that following the complainant accepting the position a more suitable candidate who was employed in one of their other restaurants made an application for the position. He was selected and appointed to the position because he had more experience and could work full-time, and this made the rostering arrangements easier. The respondent submitted that the restaurant is an equal opportunities employer and has significant levels of diversity amongst its staff. The complainant was interviewed twice and had a trial period and if it was the intention of the respondent not to employ her because of her disability they would not have progressed her application beyond the first interview. It was submitted that the respondent was aware of the complainant’s disability from the first interview and it had no impact on the decision not to proceed with the offer of employment. The respondent rejects the complainant’s contention that she was discriminated against on the disability ground. They accept that the decision not to proceed with the appointment was badly communicated to the complainant. |
Findings and Conclusions:
The matter for decision is whether the offer of employment was withdrawn for reasons connected with the complainant’s disability. Disability is defined in Section 2 of the Acts: ‘‘disability’’ means— (a) the total or partial absence of a person’s bodily or mental functions, including the absence of a part of a person’s body, (b) the presence in the body of organisms causing, or likely to cause, chronic disease or illness, (c) the malfunction, malformation or disfigurement of a part of a person’s body, (d) a condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or (e) a condition, illness or disease which affects a person’s thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour, and shall be taken to include a disability which exists at present, or which previously existed but no longer exists, or which may exist in the future or which is imputed to a person; I am satisfied that the complainant’s disability which is a cleft lip and palate causing a facial disfigurement comes within the definition of a disability outlined above. Section 6(1) of the Employment Equality Acts provide: “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) (in this Act referred to as the ‘discriminatory grounds’)” Section 6(2) provides: “As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are— ……. (g) that one is a person with a disability and the other either is not or is a person with a different disability (in this Act referred to as “the disability ground”),
8.—(1) In relation to— (a) access to employment, (b) conditions of employment, (c) training or experience for or in relation to employment, (d) promotion or re-grading, or (e) classification of posts, an employer shall not discriminate against an employee or prospective employee and a provider of agency work shall not discriminate against an agency worker. (2) For the purposes of this Act, neither an employer nor a provider of agency work shall be taken to discriminate against an agency worker unless (on one of the discriminatory grounds) that agency worker is treated less favourably than another agency worker is, has been or would be treated. ……. (5) Without prejudice to the generality of subsection (1), an employer shall be taken to discriminate against an employee or prospective employee in relation to access to employment if the employer discriminates against the employee or prospective employee— (a) in any arrangements the employer makes for the purpose of deciding to whom employment should be offered, (b) by specifying, in respect of one person or class of persons, entry requirements for employment which are not specified in respect of other persons or classes of persons, where the circumstances in which both such persons or classes would be employed are not materially different,
Section 85A of the Employment Equality Acts, sets out the burden of proof necessary in claims of discrimination. It provides "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 him or her, it is for the Respondent to prove the contrary." In the case of Melbury Developments and Valpeters (Det. No. EA AO917) the Labour Court stated in relation to Section 85 A as follows: "Section 85A of the Act 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.” The Labour Court in the case of The Southern Health Board v. Dr Teresa Mitchell DEE 011, 15th February 2001 considered the extent of the evidential burden which a complainant must discharge before a prima facie case of discrimination on grounds of sex can be made out. It stated that the complainant must: “.... “establish facts” from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination. It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the Respondent to prove that there was no infringement of the principle of equal treatment.” It requires the complainant to establish, in the first instance, a prima facie case of discrimination, that is, facts from which it can be established that she was discriminated against on the disability ground. It is only when she has discharged this burden to the satisfaction of Adjudication Officer that the burden shifts to the respondent to rebut the prima facie case raised.
I note that the offer of employment which the complainant accepted was withdrawn shortly after she did a trial in one of the respondent’s restaurant. The complainant submitted that the offer was withdrawn because of her disability. I note that even though she applied for part-time work advertised by the respondent and was accepted for employment as a deli assistant, the offer of employment was withdrawn on the basis that the position required a full-time person. I note that the person, the respondent stated was appointed to the complainant’s position, was appointed as a supervisor for all areas of the restaurant not as a deli assistant, it is not correct to say he was appointed to the position the complainant had accepted. I also note that the respondent continued to advertise vacancies both full-time and part-time baristas and waiter staff in the areas the complainant applied for following the withdrawal of the offer of employment. Likewise, I note that part-time floor staff started work for the respondent on the 21st March 2019, a month after the job offer was withdrawn from the complainant. I also note that the complainant said in evidence that she was asked to consider a back of the house position in the kitchen during both interviews despite having applied for positions as a waitress or barista and this evidence was not contradicted by the respondent. For all the above reasons, I am satisfied that the withdrawal of the offer of employment was for reasons other than that stated by the respondent. I am satisfied that the sequence of events raises an inference of discrimination. Therefore, I find that the complainant has established a prima facie case of discriminatory treatment on the disability ground.
Where a prima facie case is made out the onus shifts to the respondent to rebut the inference of discrimination raised. In the case of Calor Teoranta and Sharon Brierton EDA1510, the Labour Court stated: “This requires the Respondent to show a complete dissonance between the protected ground relied upon (in this case age) and the impugned act or omission alleged to constitute discrimination. Thus, in Wong v Igen Ltd and others [2005] EWCA Civ 142, (a decision of the Court of Appeal for England and Wales) Peter Gibson L.J. pointed out that where the Respondent fails to show that the discriminatory ground was anything other than a trivial influence in the impugned decision the complaint will be made out.
Of relevance also in this context is the decision of this Court in in Nevins, Murphy, Flood v Portroe Stevedores Limited [2005] 16 E.L.R. 282. Here, in a case involving age discrimination, the Court held: - Discrimination is usually covert and often rooted in the subconscious of the discriminator. Sometimes a person may discriminate as a result of inbuilt and unrecognised prejudice of which he or she is unaware. Thus, a person accused of discrimination may give seemingly honest evidence in rebuttal of what is alleged against them. Nonetheless, the court must be alert to the possibility of unconscious or inadvertent discrimination and mere denials of a discriminatory motive, in the absence of independent corroboration, must be approached with caution. In Nevins, Murphy, Flood the Court also considered the quality of evidence that should be expected from a Respondent who bears the burden of proof. In adopting the reasoning of the Employment Appeals Tribunal for Great Britain in Barton v Investec Henderson Crosthwaite [2003] I.R.L.R. 322, the Court held that since the facts necessary to prove a non-discriminatory explanation would usually be in the possession of the respondent, the Court should normally expect cogent evidence to discharge that burden.” In considering whether the respondent has provided cogent evidence to rebut the evidence of the complainant, I note that the decision maker, Ms. A was unavailable to give direct evidence of the reasons she withdrew the offer of employment. As stated above, I note that the respondent continued to advertise and offer part time positions to applicants after the withdrawal of the offer of employment to the complainant. Furthermore, the reason given in evidence for withdrawing the position is not credible as discussed above. In the absence of any other credible explanation, I must conclude that the complainant’s disability was the reason for the withdrawal of the employment. For these reasons and applying the above jurisprudence of the Labour Court, I am satisfied that the respondent has failed to provide satisfactory evidence to discharge the burden of rebutting the prima facie case of discriminatory treatment on the disability ground raised by the complainant. |
Decision:
Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.
I find that the respondent discriminated against the complainant on the disability ground. Section 82-(i)(c) of the Act provides that I can make an order for the effects of the discrimination. Section 82(4) provides: The maximum amount which may be ordered by the Director General of the Workplace Relations Commission by way of compensation under subsection (1)(c) or (1)(f) shall be— (a) in any case where the complainant was in receipt of remuneration at the date of the reference of the case, or if it was earlier, the date of dismissal, an amount equal to the greatest of— (i) 104 times the amount of that remuneration, determined on a weekly basis, (ii) 104 times the amount, determined on a weekly basis, which the complainant would have received at that date but for the act of discrimination or victimisation concerned, or (iii) €40,000, or (b) in any other case, €13,000.
The EU Directives require sanctions for a breach of the principle of equal treatment to be effective, dissuasive and proportionate. In accordance with Section 82 of the Act, I order the Respondent pay the Complainant €12,000 in compensation for the distress and the effects of the discriminatory treatment. The total award is redress for the infringement of the Complainant’s statutory rights and, therefore, is not subject to income tax as per Section 192A of the Taxes Consolidation Act 1997 (as amended by Section 7 of the Finance Act 2004). |
Dated: 18/09/19
Workplace Relations Commission Adjudication Officer:
Key Words:
Employment Equality Act 1998, Discriminatory treatment on the disability ground, offer of employment withdrawn, Prima facie case established. |
ADJUDICATION OFFICER DECISION
Adjudication Reference:
Parties:
| Complainant | Respondent |
Anonymised Parties | A Restaurant Worker | A Restaurant |
Complaint(s):
Act | Complaint Reference No. | Date of Receipt |
CA-00027426-001 |
Date of Adjudication Hearing:
Workplace Relations Commission Adjudication Officer:
Procedure:
In accordance with Section 79 of the Employment Equality Acts, 1998 – 2015 and following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
Background:
The complainant applied for the position of part time waiter or barista advertised by the respondent in January 2019 and was offered a position. The pay for the position was €10.50 per hour for 20 hours per week. The complainant’s case is that the respondent withdrew the offer of employment made to her after her trial period because of her disability. The respondent rejects this contention and states that an employee in another branch applied for the job and was more suitable because he could work full-time. |
Summary of Complainant’s Case:
The complainant has a congenital birth defect of a cleft lip and palate. She said that she applied for positions advertised in January 2019 of part-time barista or waiter at the respondent’s new restaurant venue which was to open shortly. Following an initial interview with the manager (Ms. A), the complainant was interviewed again by the same manager, Ms A, and the head chef. She said that she was offered the position of deli counter assistant by email dated the 21st January 2019 and she was told that she would commence work in the first week of February 2019. The complainant said that she accepted the offer of employment on the 22nd January 2019. She was then asked to do a trial shift in one of the other restaurants owned by the respondent and she completed it on 31st January 2019. The complainant said that she then received an email from Ms A thanking her for attending the trial shift and asking about the hours she was available for work. The complainant provided the hours she was available for work on the 4th February 2019. In a further email of the 11th February to the complainant, Ms A informed her that the opening of the new restaurant had been delayed a week. On the 20th of February Ms A emailed the complainant to say the position she had accepted required a full-time staff member and she would not be rostered for work and she was not offered any other position. The complainant submits that she was discriminated against as the roles she applied for were entry level positions and she was more than qualified for the positions advertised. She said that she has a first -class honours degree in Culinary Arts which included modules on all aspects of food preparation and that she is doing an MA in Gastronomy and she sees no reason other than discriminatory reasons why she was not qualified for the part-time roles advertised by the respondent. She believes because of her facial impairment the respondent decided after her trial not to continue with the employment and withdrew the offer. |
Summary of Respondent’s Case:
The respondent stated that they were opening a new restaurant and recruiting staff for all areas of the business. The manager, Ms A, was responsible for the recruitment. The respondent accepted that the complainant was offered employment, but that offer was withdrawn. The respondent’s case is that following the complainant accepting the position a more suitable candidate who was employed in one of their other restaurants made an application for the position. He was selected and appointed to the position because he had more experience and could work full-time and this made the rostering arrangements easier. The respondent submitted that the restaurant is an equal opportunities employer and has significant levels of diversity amongst its staff. The complainant was interviewed twice and had a trial period and if it was the intention of the respondent not to employ her because of her disability they would not have progressed her application beyond the first interview. It was submitted that the respondent was aware of the complainant’s disability from the first interview and it had no impact on the decision not to proceed with the offer of employment. The respondent rejects the complainant’s contention that she was discriminated against on the disability ground. They accept that the decision not to proceed with the appointment was badly communicated to the complainant. |
Findings and Conclusions:
The matter for decision is whether the offer of employment was withdrawn for reasons connected with the complainant’s disability. Disability is defined in Section 2 of the Acts: ‘‘disability’’ means— (a) the total or partial absence of a person’s bodily or mental functions, including the absence of a part of a person’s body, (b) the presence in the body of organisms causing, or likely to cause, chronic disease or illness, (c) the malfunction, malformation or disfigurement of a part of a person’s body, (d) a condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or (e) a condition, illness or disease which affects a person’s thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour, and shall be taken to include a disability which exists at present, or which previously existed but no longer exists, or which may exist in the future or which is imputed to a person; I am satisfied that the complainant’s disability which is a cleft lip and palate causing a facial disfigurement comes within the definition of a disability outlined above. Section 6(1) of the Employment Equality Acts provide: “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) (in this Act referred to as the ‘discriminatory grounds’)” Section 6(2) provides: “As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are— ……. (g) that one is a person with a disability and the other either is not or is a person with a different disability (in this Act referred to as “the disability ground”),
8.—(1) In relation to— (a) access to employment, (b) conditions of employment, (c) training or experience for or in relation to employment, (d) promotion or re-grading, or (e) classification of posts, an employer shall not discriminate against an employee or prospective employee and a provider of agency work shall not discriminate against an agency worker. (2) For the purposes of this Act, neither an employer nor a provider of agency work shall be taken to discriminate against an agency worker unless (on one of the discriminatory grounds) that agency worker is treated less favourably than another agency worker is, has been or would be treated. ……. (5) Without prejudice to the generality of subsection (1), an employer shall be taken to discriminate against an employee or prospective employee in relation to access to employment if the employer discriminates against the employee or prospective employee— (a) in any arrangements the employer makes for the purpose of deciding to whom employment should be offered, (b) by specifying, in respect of one person or class of persons, entry requirements for employment which are not specified in respect of other persons or classes of persons, where the circumstances in which both such persons or classes would be employed are not materially different,
Section 85A of the Employment Equality Acts, sets out the burden of proof necessary in claims of discrimination. It provides "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 him or her, it is for the Respondent to prove the contrary." In the case of Melbury Developments and Valpeters (Det. No. EA AO917) the Labour Court stated in relation to Section 85 A as follows: "Section 85A of the Act 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.” The Labour Court in the case of The Southern Health Board v. Dr Teresa Mitchell DEE 011, 15th February 2001 considered the extent of the evidential burden which a complainant must discharge before a prima facie case of discrimination on grounds of sex can be made out. It stated that the complainant must: “.... “establish facts” from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination. It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the Respondent to prove that there was no infringement of the principle of equal treatment.” It requires the complainant to establish, in the first instance, a prima facie case of discrimination, that is, facts from which it can be established that she was discriminated against on the disability ground. It is only when she has discharged this burden to the satisfaction of Adjudication Officer that the burden shifts to the respondent to rebut the prima facie case raised.
I note that the offer of employment which the complainant accepted was withdrawn shortly after she did a trial in one of the respondent’s restaurant. The complainant submitted that the offer was withdrawn because of her disability. I note that even though she applied for part-time work advertised by the respondent and was accepted for employment as a deli assistant, the offer of employment was withdrawn on the basis that the position required a full-time person. I note that the person, the respondent stated was appointed to the complainant’s position, was appointed as a supervisor for all areas of the restaurant not as a deli assistant, it is not correct to say he was appointed to the position the complainant had accepted. I also note that the respondent continued to advertise vacancies both full-time and part-time baristas and waiter staff in the areas the complainant applied for following the withdrawal of the offer of employment. Likewise, I note that part-time floor staff started work for the respondent on the 21st March 2019, a month after the job offer was withdrawn from the complainant. I also note that the complainant said in evidence that she was asked to consider a back of the house position in the kitchen during both interviews despite having applied for positions as a waitress or barista and this evidence was not contradicted by the respondent. For all the above reasons, I am satisfied that the withdrawal of the offer of employment was for reasons other than that stated by the respondent. I am satisfied that the sequence of events raises an inference of discrimination. Therefore, I find that the complainant has established a prima facie case of discriminatory treatment on the disability ground.
Where a prima facie case is made out the onus shifts to the respondent to rebut the inference of discrimination raised. In the case of Calor Teoranta and Sharon Brierton EDA1510, the Labour Court stated: “This requires the Respondent to show a complete dissonance between the protected ground relied upon (in this case age) and the impugned act or omission alleged to constitute discrimination. Thus, in Wong v Igen Ltd and others [2005] EWCA Civ 142, (a decision of the Court of Appeal for England and Wales) Peter Gibson L.J. pointed out that where the Respondent fails to show that the discriminatory ground was anything other than a trivial influence in the impugned decision the complaint will be made out.
Of relevance also in this context is the decision of this Court in in Nevins, Murphy, Flood v Portroe Stevedores Limited [2005] 16 E.L.R. 282. Here, in a case involving age discrimination, the Court held: - Discrimination is usually covert and often rooted in the subconscious of the discriminator. Sometimes a person may discriminate as a result of inbuilt and unrecognised prejudice of which he or she is unaware. Thus, a person accused of discrimination may give seemingly honest evidence in rebuttal of what is alleged against them. Nonetheless, the court must be alert to the possibility of unconscious or inadvertent discrimination and mere denials of a discriminatory motive, in the absence of independent corroboration, must be approached with caution. In Nevins, Murphy, Flood the Court also considered the quality of evidence that should be expected from a Respondent who bears the burden of proof. In adopting the reasoning of the Employment Appeals Tribunal for Great Britain in Barton v Investec Henderson Crosthwaite [2003] I.R.L.R. 322, the Court held that since the facts necessary to prove a non-discriminatory explanation would usually be in the possession of the respondent, the Court should normally expect cogent evidence to discharge that burden.” In considering whether the respondent has provided cogent evidence to rebut the evidence of the complainant, I note that the decision maker, Ms. A was unavailable to give direct evidence of the reasons she withdrew the offer of employment. As stated above, I note that the respondent continued to advertise and offer part time positions to applicants after the withdrawal of the offer of employment to the complainant. Furthermore, the reason given in evidence for withdrawing the position is not credible as discussed above. In the absence of any other credible explanation, I must conclude that the complainant’s disability was the reason for the withdrawal of the employment. For these reasons and applying the above jurisprudence of the Labour Court, I am satisfied that the respondent has failed to provide satisfactory evidence to discharge the burden of rebutting the prima facie case of discriminatory treatment on the disability ground raised by the complainant. |
Decision:
Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.
I find that the respondent discriminated against the complainant on the disability ground. Section 82-(i)(c) of the Act provides that I can make an order for the effects of the discrimination. Section 82(4) provides: The maximum amount which may be ordered by the Director General of the Workplace Relations Commission by way of compensation under subsection (1)(c) or (1)(f) shall be— (a) in any case where the complainant was in receipt of remuneration at the date of the reference of the case, or if it was earlier, the date of dismissal, an amount equal to the greatest of— (i) 104 times the amount of that remuneration, determined on a weekly basis, (ii) 104 times the amount, determined on a weekly basis, which the complainant would have received at that date but for the act of discrimination or victimisation concerned, or (iii) €40,000, or (b) in any other case, €13,000.
The EU Directives require sanctions for a breach of the principle of equal treatment to be effective, dissuasive and proportionate. In accordance with Section 82 of the Act, I order the Respondent pay the Complainant €12,000 in compensation for the distress and the effects of the discriminatory treatment. The total award is redress for the infringement of the Complainant’s statutory rights and, therefore, is not subject to income tax as per Section 192A of the Taxes Consolidation Act 1997 (as amended by Section 7 of the Finance Act 2004). |
Dated: 18/09/19
Workplace Relations Commission Adjudication Officer:
Key Words:
Employment Equality Act 1998, Discriminatory treatment on the disability ground, offer of employment withdrawn, Prima facie case established. |