Complainant

Respondent

Parties

Rebecca  Ladds

Celtic Ross Hotel Limited

Representatives

  Self-Represented

Conor White, Comyn Kelleher Tobin

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-00063205-001

30/04/2024

The Complainant submits she was originally employed as an acting Food and Beverage Manager (FBM) with the Respondent hotel from  27 June 2023. The Complainant resigned on 2 May 2024, post her submission to the Workplace Relations Commission (WRC). The circumstances of her resignation are therefore not for investigation.   Her salary was €730; net €603 per week. The Complainant contends she was not promoted to the full FBM position because of her relatively young age (29yrs), which she claims is discrimination under the Acts.

The Respondent denies any discrimination and asserts that the Complainant was employed originally as per her contract of employment as an assistant FBM, not acting FBM, and furthermore submits that there was no position of senior FBM for promotion   at the material time.  

The Complainant outlined how she successfully finished her probationary period towards the end of 2023. The previous general manager, Mr A, had assured her that she would be promoted to senior FBM at the end of her probationary period, but he told her subsequently “It is not in my hands anymore, but I have passed it on” . Mr A had handed in his resignation and another general manager was appointed, Ms B. The Complainant expressed her frustration at a meeting with the Financial Controller and Ms Deirdre Kelly, Human Resources and claimed that at a second meeting on 26 March 2024, Ms Kelly told her that she was “quite young for the position”. Separately, the Complainant said that Ms B told her she was not in a position to promote people but that her role was mainly to try and save money.  The Complainant had taken a bullying complaint against a senior manager but accepted that the complaint was unrelated to the age discrimination case.

The Complainant accepted in cross examination that no staff member had been promoted to the role at issue, nor therefore had she a comparator to rely upon for the age grounds complaint. She accepted that at the meeting of 26 March 2024, it was she, the Complainant, who asserted that the last FBM was a 21-year-old. The Complainant also accepted that there was no mention in her submitted argument and documentation to the WRC  of the remark about age attributed to Ms Kelly. The Complainant accepted that she had received an email, together with all staff, from Mr A in December 2023 indicating that there would be no review of salaries until April/May 2024 due to a challenging business environment.  The Complainant acknowledged that she did not make an issue with the Terms of Employment at commencement of employment, or subsequently, when she was described as “assistant food and beverage manager”.   

Ms Deirdre Kelly, HR Manager refuted the assertion by the Complainant that age was a factor in not promoting her. She said that her role at the meeting in question was primarily to take notes. She said that there was no role for the Complainant to be promoted into but that the Complainant had received a salary increase of €2000 around 1 April 2024. 

Ms Helen Wycherley, Director of the Respondent hotel said that there was no issue with the performance of the Complainant in her role. She did not accept the position that age was a factor in not promoting her because there was no FBM role vacant.

Respondent Argument:

The Respondent contends that the Complainant’s allegation of discrimination is unsupported and fails to meet the burden of proof required to shift the onus to the Respondent. The Respondent argues the Complainant has not substantiated her claim of discrimination in her submissions to the WRC on 3 May 2024, nor on 1  July  2024.   

The Respondent cites Section 85A(i) of the Act, where there is a requirement for  the Complainant to establish facts that indicate discrimination, which would then shift the burden of proof to the Respondent, therefore  the Complainant has failed to establish such a prima facie case. The Respondent cites Southern Health Board v. Mitchell (Labour Court AEE/99/8) and Minaguchi v. Wineport Lakeshore Restaurant (DEC-E/2002/20), which outline the requirement for the Complainant to establish primary facts indicating unequal treatment. Additionally, the Respondent points to  National School v. A Worker (ADE/15/7) which allows for hypothetical comparators in discrimination claims, but the Respondent argues no such comparator exists for this age discrimination claim.  The Respondent asserts that no other employee was promoted to the role of senior FBM, which no longer exists, and that no other party was treated more favourably than the Complainant on the grounds of age or otherwise.

Applicable Law:

The burden of proof is on the Complainant to present, in the first instance, facts from which it can be inferred that she was treated less favourably on the discriminatory ground cited. Section 85A of the Act states 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 him or her, it is for the respondent to prove the contrary.

(2) This section is without prejudice to any other enactment or rule of law in relation to the burden of proof in any proceedings which may be more favourable to a complainant.

(3) Where, in any proceedings arising from a reference of a matter by the Commission to the [Director General] under section 85(1), facts are established by or on behalf of the Commission from which it may be presumed that an action or a failure mentioned in a paragraph of that provision has occurred, it is for the respondent to prove the contrary.

(4) In this section “discrimination” includes—

(a) indirect discrimination,

(b) victimisation,

(c) harassment or sexual harassment,

(d) the inclusion in a collective agreement to which section 9 applies of a provision which, by virtue of that section, is null and void.

In Arturs Valpeters v Melbury Developments Ltd 21 (2010) ELR 64 the Labour Court gave guidance on how the above section is to be interpreted.:

“Section 85A of the Act provides for the allocation of the probative burden in cases within its ambit. This requires that the complainant 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. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the complainant and the language of this provision admits of no exceptions to that evidential rule.”

When considering the primary facts adduced by the Complainant I must take into consideration the Respondent’s contrary evidence, when determining whether the burden of proof should shift to the respondent. In the Labour Court case of Dyflin Publications Limited v Spasic EDA0823, it was stated that:-

“…. the Court should consider the primary facts which are relied upon by the complainant in their proper context. It also indicates that in considering if the burden of proof shifts the court should consider any evidence adduced by the respondent to show that, when viewed in their proper context, the facts relied upon do not support the inference contended for by the complainant.”

The Complainant’s case pivots around an alleged remark at a meeting of 26 March 2024 when the Complainant was seeking a wage rise where she alleges that Ms Kelly, The HR Manager, said the Complainant was “quite young for the position”. Ms Kelly strenuously denied passing this remark. I preferred Ms Kelly’s evidence on this point for the following reasons. The Complainant could give no plausible reason as to why she did not refer to this alleged statement in the copious documentation and submissions she sent to the WRC prior to the hearing. Furthermore, there is no reference, general or specific, to age grounds in the   exhibited documents and notes of meetings. The plain fact of the matter is that there was uncontested evidence that nobody was promoted into a Food and Beverage Manager position either during the currency of the Complainant’s employment, nor afterwards. The consequence of this was that there was no comparable person for whom the Complainant could allege unfavourable treatment, nor was there scope to create a hypothetical comparator. Having considered all the evidence and submissions in this case I decide that the Complainant could not establish any primary facts that could infer discrimination on age grounds, therefore I find that the Respondent did not discriminate against her in failing to promote her.    

Based on the reasons outlined above,  I conclude that the Complainant did not establish primary facts from which discrimination could reasonably  be inferred, contrary to section 85A of the Act, therefore, I find that the  Respondent did not discriminate against the Complainant on the grounds of age.

Employment Equality Acts 2000-2015, Age Grounds.