FULL RECOMMENDATION
PARTIES :
DIVISION :
SUBJECT: 1.Appeal of Adjudication Officer Decision No ADJ-00020817. The Complainant has a cleft lip and palate. It is common case that this constitutes a disability within the meaning of the Act. Coveglade Limited (‘the Respondent’) operates a number of restaurants and wine bars in the Dublin area that trade under the ‘Ely’ brand. In 2018, the Respondent decided to open an additional outlet in Maynooth, Co. Kildare. It began recruiting for staff in early 2019. The Complainant was a third level student at the time and completing a master’s degree in Gastronomy and Food Studies at the Technological University of Dublin. By email dated 7 January 2019, she applied for a part-time waiting/barista position in the Respondent’s new premises in Maynooth. The Complainant attended for a first interview with Ms Michelle Lawlor, the Manager of the Maynooth outlet, on 11 January 2019. She was successful at this stage and progressed to a second interview on 16 January 2019. Ms Lawlor was accompanied by Mr Ryan Stringer, the Head Chef in Maynooth, on this occasion. The Complainant was again successful at this interview and was offered the part-time position of deli counter assistant on 21 January 2019 which she accepted by email dated 22 January 2019. It is apparent from contemporaneous correspondence between the Parties opened to the Court that the Complainant understood that she would have to successfully complete a trial shift at one of the Respondent’s restaurants before taking up her part-time role in the Maynooth business. Ms Lawlor confirmed in an email dated 25 January to the Complainant that the trial shift would be paid. In that same email, Ms Lawlor indicated that the Respondent would be getting the keys of the Maynooth premises from the builder on 9 February 2019 and expected to have shifts available for the Complainant after that date. Meanwhile, the Complainant’s trial shift took place on 31 January 2019 in the Respondent’s premises in the Irish Financials Services Centre. It lasted approximately two hours and the Complainant completed it successfully. On 4 February 2019, Ms Lawlor emailed the Complainant to enquire about her availability for part-time work. The Complainant replied on the same day to advise that she would be available for up to twenty hours per week and had a preference to work those hours over two and half days. On 11 February 2019, Ms Lawlor emailed the Complainant to advise that the opening of the Maynooth restaurant had been delayed by one week. On 20 February 2019, Ms Lawlor informed the Complainant by email that final rosters had been drawn up and that it would no longer be possible to offer her part-time work. Ms Lawlor’s email stated: “Having reviewed the roster, the position requires a full-time staff member, and given your availability and existing commitments, it is with regret to inform you (sic) that we will not be able to include you on the roster.” The Complainant replied by email dated 23 February 2019. She stated, inter alia in her reply:“I hope you understand that you have set me back in terms of finding jobs and pursuing other opportunities by wasting my time over the course of the last four weeks since the offer of employment at Ely was made. Furthermore, I find it very difficult to believe that considering we discussed my other commitments (which will of course, as you know, cease to be a factor in May 2019, at the conclusion of this academic year) and that it was you who suggested the role of deli/counter assistant, given that I’d applied for a role as barista or wait staff, that you only realised on Wednesday that this position could only be filled by someone working full time. If this is the case, as you say it is, having only reviewed the roster recently, I can only say that it reflects a massive oversight on your part and a gross lack of competence and professionalism in both you and the Ely Group as a whole. I cannot begin to imagine how it could take over a month to recognise the working requirements of the various roles within your establishment. I can only hope this sudden epiphany as to my apparent unsuitability to a role for which I am more than qualified for (sic) and able to carry out, is solely to do with your own incompetence and nothing to do with some desire not to have somebody with a ‘facial difference’ working as FOH and representing the ‘face’ of the Ely Group.” (Emphasis as in original) On Sunday 24 February 2019 the Complainant sent an email to both directors of the Respondent – Erik Robson and Michelle Robson – in which comprehensively outlined what she characterised as the “gross level of unprofessionalism and incompetence exhibited by Michelle [Lawlor]” when the latter, on 20 February 2019, had withdrawn the offer of part-time employment made to the Complainant on 21 January 2019 and accepted by her the following day. The Complainant stated, inter alia, in this email:“Sadly because of the lack of common decency shown to [me] by the Ely Group, and given the ridiculousness of the level of apparent incompetence displayed by your employee Michelle, I am drawing the conclusion that the real reason the offer was reneged upon is solely to do with my having a cleft lip and palate.” Ms Michelle Robson replied to the Complainant by email on that same day expressing her disappointment at how the Complainant’s application had been handled and advising her that she would speak to Michelle Lawlor to find out “why [her] application/offer was ended so abruptly and without common courtesy. Absolutely not the ‘ely’ way, not acceptable at any level.” Ms Robson did follow up with Ms Lawlor as she had undertaken to do and reverted to the Complainant again the following day, 25 February 2019. In that correspondence, she informed the Complainant that an existing member of the Respondent’s staff in an established location had made an application for an internal transfer to Maynooth. This request had been accepted and had a knock-on effect for staffing needs and rosters in Maynooth. Ms Robson also advised the Complainant that the Respondent would be willing to offer her a suitable role in the future. The Complainant wrote again to Ms Robson, Mr Erik Robson and Ms Lawlor on 28 February 2019 to advise that she had determined to pursue “this matter with the Workplace Relations Commission” and that the recipients were to take her email “as formal notification of her intention to make a complaint to the WRC on the basis of discrimination by [the Respondent], the Ely Restaurant Group, against [her], Deirdre Hynes under the Equal Status Acts (sic)”. The Complainant went on to particularise her complaint in the following terms: “I can only conclude that despite my suitability for the role I was given, the reason my position was dissolved without notice, consultation, apology or offer of an alternative position, was on the basis of my birth defect (my cleft lip and palate). I therefore, believe that I was discriminated against during the recruitment process for this position – which was unusually long given the entry level nature of the position for which I applied. I therefore also believe that I was dismissed from the employ of the Ely Restaurant Group on the basis of my physical appearance (my cleft lip and palate).” The Complainant attached an ES1 and an ES2 form to her email. The Complaint The Complainant furnished the Court with a very detailed written submission, supported by some two hundred and twenty pages of appendices, in support of her appeal. However, she agreed with the Court that there were three core parts to the claim that she was advancing under the Act: (a) The interview stage: On three occasions during the interview process the Complainant had been asked if she would consider a back-of-house (‘BOH’) position although she had applied for a front-of-house (‘FOH’) position. She submits that those requests were indicative of a discriminatory disposition on the part of her interviewers. (b) The trial shift: The Complainant was asked to work a trial shift of two hours’ duration in a very busy restaurant at a busy time while other potential employees were asked to do their trial at a less busy time of the day in a less busy location. She submits that this was intended to dissuade her from pursuing a job with the Respondent. (c) The dismissal: The Complainant submits that she was never given an objective ground for the suppression of her part-time position. In the alternative, she submits she was given multiple and inconsistent explanations at different times for the revocation of the offer of employment made to her and accepted by her. She also submits that the part-time deli assistant position offered to her never existed. Cumulatively, she says the foregoing demonstrates that the Respondent never intended to employ her at all. The Respondent’s Submissions The Respondent accepts that the Complainant had been asked at interview whether or not she would consider a BOH position. It submits, however, that this was done because she had prior experience in such roles and because there is generally a shortage of applicants for BOH positions. It denies that the request was made for discriminatory reasons. The Respondent denies, likewise, that the choice of trial shift offered to the Complainant was in any way out of the ordinary. It submits that applicants complete such trial shifts across all of its restaurants at varying times of the day. The Respondent admits that the Complainant’s recruitment was handled inappropriately from start to finish. It submits that the decision at a local level in Maynooth to offer her a part-time position as deli assistant was incorrect as all FOH staff are required to be flexible and available for a range of duties. The Respondent submits that the Complainant’s case to the effect that it never wanted to hire her doesn’t hold water. She had been put through the various stages of the Respondent’s recruitment process – consisting of two interviews and a trial shift – in the normal way. She was successful at each stage. Had it been the Respondent’s intention not to hire her, she would not have been progressed through the process. Discussion and Decision Section 85A(1) of the Act provides as follows in relation to the burden of proof on a Complainant who alleges discriminatory treatment contrary to the Act: “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.” This Court – in its determination inSouthern Health Board v Mitchell[2001] ELR 201 – considered the extent of the evidential burden imposed on a Complainant by section 85A and held: “The first requirement is that the claimant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This 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 is no infringement of the principle of equal treatment.” It follows that a complainant has to establish both the primary facts upon which he or she relies and also that those facts are of sufficient significance to raise an inference of discrimination. InCork City Council v McCarthyEDA 21/2008, this Court stated in this regard: “The type or range of facts which may be relied upon by a complainant may vary significantly from case to case. The law provides that the probative burden shifts where a complainant proves facts from which it may be presumed that there has been direct or indirect discrimination. The language used indicates that where the primary facts alleged are proved it remains for the Court to decide if the inference or presumption contended for can properly be drawn from those facts. This entails a consideration of the range of conclusions which may appropriately be drawn to explain a particular fact or a set of facts which are proved in evidence. At the initial stage the complainant is merely seeking to establish a prima facie case. Hence, it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts.” InMelbury Developments Ltd v Valpeters[2010] ELR 64, however, the Court stated that “mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn”. Having regard to the submissions of the Parties in this case, and the extensive correspondence between them opened in the course of the appeal, the Court is of the view that the Complainant does not meet the burden of proof required by section 85A(1) of the Act. The Complainant’s case is grounded largely on speculation and unproven assertions. For example, it was the Complainant herself, in her email of 23 February 2019, who introduced the notion that the Respondent had somehow deemed her unsuitable for employment, no such suggestion ever having been made by the Respondent at all. None of the matters submitted by the Complainant, taken individually or cumulatively can be considered to be of sufficient significance to raise a presumption of discrimination. In any event, even if the Court had found that the Complainant had established a prima facie case, it appears to the Court that the Respondent has offered a non-discriminatory explanation for the decision to revoke the offer of part-time employment to her in circumstances where it had accepted an application from an existing employee to transfer from another restaurant to its new restaurant in Maynooth. Notwithstanding its determination, the Court nevertheless is of the view that the manner in which the Complainant’s recruitment was handled was shoddy in many respects and fell far short of best human resources practice. The Respondent has accepted this and was at pains to apologise to the Complainant for the manner in which she had been treated by it. The Respondent, through Ms Robson did, in fact, seek to make amends to the Complainant and clearly informed her in writing that it would be willing to offer her employment in the future in an alternative role. Regrettably, the Complainant spurned this offer and chose to embark on the within proceedings. The Court so determines.
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