Complainant

Respondent

Parties

Marcus  Flanagan

Slidville Ltd t/a The Ashbourne Court Hotel

Representatives

  Ms. E Yeoman - Representative

Mr. R. McDermott - Company Owner / Manager

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-00040398-001

14/10/2020

The Complainant was employed as a Chef with the Respondent Hotel. The employment began on the 20th of August 2015 and ended on the 14th of December 2020. The rate of pay was €480 Gross for a 40-hour week.

The issue in contention was the allegation that the Complainant had been discriminated against, contrary to the Employment Equality Act,1998, on the Grounds of Civil Status, Conditions of Employment and subject to Harassment.

The Complainant made a written submission and gave an extensive Oral Testimony. He was cross examined by the Respondent.

The Complainant had worked without issue since his recruitment in 2015. He was paid €340 in cash with the Books showing €418.  Following the first Covid 19 Shutdown he returned to work in July 2020 to find his hours and payments changed. He was now expected to work his full hours but for effectively less than half pay. Due to the stress imposed he was certified by his GP and he went on Sick leave for 8 weeks but returned after 5 weeks. On his return from Sick leave, he tried to raise the pay issue with the Manager, Mr. H. The situation was further complicated by a Tax/PAYE certs issue. He was told by Mr. H, to wait to meet the Owner, Mr. McD who told him that “He was no longer in charge”. A New Head Chef had been taken on and he was to report to him.  The Complainant was told he would only be working a 20-hour week. The new Chef was doing a full-time week.

In addition, at this time (October 2020) he was given, out of the blue, a Written Warning regarding his alleged failures in relation to Clocking IN/OUT. This was a major issue for him as he had received no warnings or even had discussions on this matter. It was a completely unjustified Warning to a very loyal employee of over 5 years standing.

The Complainant felt that he was being pressurised into resigning without any Redundancy having to be paid. He was on sick leave again from the 28th of October 2020 to the 18 December 2020. He resigned on the 14th of December 2020.

His resignation was due to the need to have proper regard to his health and wellbeing. The position in the Hotel had become untenable and seeking another new employment was his only option.

The Respondent gave a written statement and extensive Oral Testimony from the MD. Mr. R. McD.

The Employment was a busy Hotel. In keeping with all Hospitality, he had to Covid close from March to the w/e the 12th of July. During the lock down the Complainant was paid through the Government TWSS Scheme. On reopening he was paid €420 gross / nett €418 again via the TWSS. His hours were reduced by agreement to 30-32 per week. After three weeks he went on sick leave for 8 weeks. After his return he worked for four (4) weeks and then submitted medical certs for effectively 7 weeks.

The hotel was under severe operating pressure, so it was necessary to hire another Chef – the Complainant’s position was so uncertain. On his return in October 2020 the Complainant was very unhappy that a new Chef was working there. However, he continued working but made it very clear to all comers that he was “not moving” and that a “Load of money” would have to be found for his Redundancy. He was also quite rude to the new Chef and in his interactions with Management generally. Mr.R.McD had raised these issues with the Complainant in the October meeting. He had emphasised to the Complainant that it was unprecedented times for all Hotels and bad mouthing the Management was doing no one any good. His personal Tax/PAYE situation was nothing the Hotel could do anything about.

In relation to the Clocking issue the Complainant had always had a lax approach to Clocking IN/OUT. He had been spoken to on a number of occasions regarding the need to properly record hours for accounts purposes. The Warming on the 13th of October 2020 was the result of frustration on the part of Management that the Complainant did not appear to regard the issue of clocking as being of any importance.

The Respondent, in Oral testimony, repeated that they did not want the Complainant to resign. He was a good chef, but he had to accept that in a Covid situation it was “all hands on deck “so to speak. Much of the wage bill was coming from the TWSS scheme and the Respondent had no choice but to observe the rules. Business was down badly, and hours were reduced across the board. It was not directed solely at the Complainant.

The Respondent repeated that the resignation was completely unnecessary.  The Hotel had plenty of work for him.

The Owner/Manager Mr. R. McD emphasised in conclusion that all that had been asked of the Complainant was to work through the Covid crisis and accept that exceptional measures in regard to hours/wages were part of this process for all Hospitality Sectors.

3:1         Opening Legal issues.

The Complaint is under the terms of the Employment Equality Act,1998. The Grounds of Discrimination under Civil Status, Conditions of Employment and Harassment are claimed.

In opening discussions with the Adjudication Officer, the Ground of Civil Status was withdrawn as being non applicable.

Accordingly, Discrimination as set out in Sections 6 & 8 under the Employment Equality Act,1998 apply.

As an aid to all the Parties, neither of whom had Legal /Professional representation at the Hearing, I have quoted in full of the Act below.

Discrimination for the purposes of this Act.

6.—( 1) 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) 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’) which—

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned,

(b) a person who is associated with another person—

(i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and

(ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination.

(2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are—

(a) that one is a woman and the other is a man (in this Act referred to as “the gender ground”),

(b) that they are of different  civil status (in this Act referred to as “the [civil status ground”),

(c) that one has family status and the other does not (in this Act referred to as “the family status ground”),

(d) that they are of different sexual orientation (in this Act referred to as “the sexual orientation ground”),

(e) that one has a different religious belief from the other, or that one has a religious belief and the other has not (in this Act referred to as “the religion ground”),

(f) that they are of different ages, but subject to subsection (3) (in this Act referred to as “the age ground”),

(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”),

(h) that they are of different race, colour, nationality or ethnic or national origins (in this Act referred to as “the ground of race”),

(i) that one is a member of the Traveller community, and the other is not (in this Act referred to as “the [Traveller] community ground”).

Discrimination in Specific Areas

Discrimination by employers etc.

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.

(3) In subsections (4) to (8), references to an employee include references to an agency worker and, in relation to such a worker, references to the employer include references to the provider of agency work.

(4) A person who is an employer shall not, in relation to employees or employment—

(a) have rules or instructions which would result in discrimination against an employee or class of employees in relation to any of the matters specified in paragraphs (b) to (e) of subsection (1), or

(b) otherwise apply or operate a practice which results or would be likely to result in any such discrimination.

(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, or

[(c) by publishing or displaying, or causing to be published or displayed, an advertisement which contravenes section 10(1) in so far as such advertisement relates to access to employment.

(6) Without prejudice to the generality of subsection (1), an employer shall be taken to discriminate against an employee or prospective employee in relation to conditions of employment if, on any of the discriminatory grounds, the employer does not offer or afford to that employee or prospective employee or to a class of persons of whom he or she is one—

(a) the same terms of employment (other than remuneration and pension rights),

(b) the same working conditions, and

(c) the same treatment in relation to overtime, shift work, short time, transfers, lay-offs, redundancies, dismissals and disciplinary measures,

as the employer offers or affords to another person or class of persons, where the circumstances in which both such persons or classes are or would be employed are not materially different.

(7) Without prejudice to the generality of subsection (1), an employer shall be taken to discriminate against an employee in relation to training or experience for, or in relation to, employment if, on any of the discriminatory grounds, the employer refuses to offer or afford to that employee the same opportunities or facilities for employment counselling, training (whether on or off the job) and work experience as the employer offers or affords to other employees, where the circumstances in which that employee and those other employees are employed are not materially different.

(8) Without prejudice to the generality of subsection (1), an employer shall be taken to discriminate against an employee in relation to promotion if, on any of the discriminatory grounds—

(a) the employer refuses or deliberately omits to offer or afford the employee access to opportunities for promotion in circumstances in which another eligible and qualified person is offered or afforded such access, or

(b) the employer does not in those circumstances offer or afford the employee access in the same way to those opportunities.

In plain English for a claim of Discrimination to succeed the Complainant has to establish that he/she was “treated less favourably than another person” on any of the stated “protected grounds” such as Race, Religion, Membership of the Travelling Community, Sexual Orientation etc.

As a first step a Complainant has to establish a “Prima Facie case” i.e., to raise sufficient evidence to sustain an “inference “that Discrimination had taken place. It is then the responsibility of the Respondent (Employer) to disprove the case.

There is considerable Legal precedent in this area.

However, all Legal issues notwithstanding, all cases rest on their own evidence both written and oral.

This will be considered below.

3:2          Consideration of Evidence presented.

Much rested on the Oral testimony of the Parties in this case. It appeared that in the previous five (5) years a good relationship existed between the Parties. While a written contract was in existence there appeared to have been a degree of positive informality, to everyone’s benefit, in the Relationship. There was a difference of opinion as to the status of cash payments prior to the Covid emergency.

During the first Lockdown from March to July 2020 the Employer availed of the TWSS Government Scheme with all the attached rule and regulations, to be policed by the Revenue. On the resumption the Complainant was still on this Scheme. In addition, the reopening of the Hotel was severely constrained by Covid rules as regards numbers of patrons, opening hours etc. It is well known that Hotels, in particular, struggled to stay financially afloat during this period.

On his return in July the Complainant was very aggrieved that the wage payment arrangements were different -no cash – and that the weekly hours required were very variable.

The Respondent, who came across as a competent witness, argued that it was a survival struggle for the Employer and old certainties were simply not applicable. He argued strongly that the business in the midst of Covid simply could not predict the future. The Complainant felt that he was being Discriminated against in terms of Hours and Wages.

As neither side was Represented professionally the Adjudication Officer very informally questioned the Complainant how this discrimination, as set out in the Employment Equality Act, 1998 had taken place.

Realistically and in consideration of all evidence, in Adjudication review, none of the nine grounds (Age, Sex, Religion, Disability, Family/Civil Status etc) as set out above in the Act, could be said to have applied.

The Complainant was very unhappy with the Post Covid Arrangements as they applied to his hours and wages. He was further infuriated by the recruitment of an additional Chef in early September. The Respondent argued that due to the large number of weeks sick leave the Complainant was taking the Hotel had to keep the kitchens going. An additional Chef was an absolute necessity.

In relation to which Chef was in overall charge the Respondent argued that in the Covid crisis this issue was an irrelevance in a business struggling to stay afloat. In the context of this case it was hard to disagree with the Respondent.

In relation to Redundancy, it was clear that the Complainant was very open to this idea. He had no difficulty in securing almost immediate re employment after his resignation. However, the Respondent made it clear that Redundancy was not on option as the job was there and remained there, for the Complainant.

Regrading Harassment of the Complainant by the Employer it was hard to see this in evidence. In the period from July to December the Complainant was out on either Sick leave or Covid for some 15 weeks. It was accepted that a testy exchange with Mr. R. McD, the Owner /Manager took place in early October. However, by any legal precedents this could not meet the required standards, to base a complaint, of Harassment.

3:3        Adjudication Conclusions

The Complaint was under the Employment Equality Act, 1998 – Section 6 applies.

The Complainant was highly aggrieved at the post Covid arrangements in his employment.

However, he has failed to establish as required by the Employment Equality Act a clear basis of Discrimination on any of the stated “protected grounds”. In legal terms he has failed to establish a “Prima Facie” case.

The Complaint must fail.

No Discrimination, as defined in the Act, took place.

Discrimination, Employment Equality, Covid issues.