Complainant

Respondent

Parties

Waleed  Maza

Absolute Hotel Limerick Limited

Representatives

  Self-represented

Tiernan Lowey BL instructed by  ARAG Legal Protection

Act

Complaint Reference No.

Date of Receipt

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

CA-00056083-003

25/04/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00056083-004 WITHDRAWN AT THE HEARING

25/04/2023

The Complainant referred his dispute pursuant to the Industrial Relations Act, 1969 to the Director General of the WRC on 12 April 2023 alleging that he was unfairly dismissed.

In response to the WRC follow up correspondence, on 25 April 2023, the Complainant submitted another WRC complaint referral form, wherein he alleged that:

He was unfairly dismissed, and he did not have at least 12 months service - a dispute pursuant to the Industrial Relations Act, 1969.

He had a complaint in relation to disciplinary sanction up to and including dismissal – a dispute pursuant to the Industrial Relations Act, 1969.

He had been discriminated against by the Respondent on the grounds of race and religion – a complaint under the Employment Equality Acts, 1998 as amended.

He was penalised or threatened with penalisation for opposing in good faith an action that is unlawful or giving notice of his intention of doing so under the Organisation of Working Time Act, 1997.

On 3 May 2023, the Respondent objected to the investigation of the disputes under the Industrial Relations Act, 1969 by the Adjudication Officer pursuant to section 36(1) of the Industrial Relations Act, 1990.

At the adjudication hearing, the Complainant withdrew his complaint pursuant to the Organisation of Working Time Act, 1997.

The Complainant commenced his employment with the Respondent on 2 July 2022. He was dismissed on 24 February 2023 following a disciplinary process regarding his entering a hotel room without knocking and announcing himself.

In his written submission received on 29 February 2024, the Complainant submitted as follows.

The Complainant submitted that as the Night Duty Manager at Absolute Hotel since July 2022 he was tasked with overseeing hotel operations, including fire checkpoints during the night, and addressing guest concerns, such as changing rooms if guests were unhappy. However, an incident regarding the Complainant entering a hotel room, which had been unused for over a year due to air conditioning issues, led to allegations of racial discrimination and religious bias.

The Complainant submitted that upon investigation, it was found that a colleague had legitimately booked the room without informing the Complainant, highlighting a lack of communication and proper handover procedures. Subsequently, a disciplinary hearing was convened with regard to the Complainant entering the room without prior notification, which caused discomfort to a colleague present in the room. Management asserted that the room may have been repaired during the Complainant’s absence. This led to the termination of the Complainant’s employment instead of addressing the underlying communication issue.

Moreover, the Complainant believed that management may have sought grounds to terminate his employment, evidenced by their surprise at his inability to serve alcohol due to religious beliefs, which was not inquired about during the job interview.

The Complainant argued that his termination may have been influenced by his religious beliefs and management's dissatisfaction with his decision to enrol in a technical support course.

The Complainant submitted that despite management's accusations of gross misconduct, his actions were inadvertent responses to a colleague's presence in the hotel room, not warranting termination and potentially reflecting discriminatory practices. The disparity between actual room usage and the information in the booking system reveals systemic issues within the hotel, compounded by his dismissal for entering a room designated for alternative purposes without knocking. Despite advocating for clearer labelling in the property management system, the Complainant’s recommendations were disregarded, leading to his dismissal.

The Complainant submitted that his nationality and religious differences with the colleague in question may have influenced the Respondent’s decision. The Complainant asserted that he was the sole individual whose employment was terminated in circumstances when an unsuitable room was allocated to a hotel worker without proper designation and was treated as a guest room rather than part of the hotel's internal infrastructure.

Additionally, the Complainant submitted that the inconsistency regarding alcohol serving policies raises doubts about management's motives.

The Complainant submitted that his employment lasted seven months from July 2022 to January 2023, with a six-month training period stipulated in the contract. The incident occurred in January, two weeks after the training period ended. The Complainant suggested that the Respondent could have extended his training instead of terminating his employment.

The Complainant submitted that during the disciplinary hearing, management referred to his work colleague as a guest, despite knowing that he was an employee.

The Complainant asserted that he should have been provided with a personal work email to receive updates about hotel operations, including repairs to the room in question during his absence.

The Complainant further asserted that his work colleague should have informed him of their stay in the hotel after work.

The Complainant submitted that he experienced challenges related to religious accommodation, particularly concerning his prayer times. Despite his attempts to communicate and negotiate with the Respondent regarding these accommodations, there were instances where his prayer times were not respected.

The Complainant further asserted that several notes were added to his file without his knowledge, consent, or signature, raising concerns about the Respondent's intentions and its commitment to fair and transparent employment practices. This unilateral action suggests a lack of regard for the Complainant’s rights as an employee and indicates a potential predisposition towards dismissal in the future.

Summary of direct evidence and cross-examination of the Complainant

At the adjudication hearing, the Complainant said that he helped out ‘a guy’ in the bar who made comments about the Palestinian – Israeli conflict and sided with Israel. He said that there were conversations about political situation in the region. The Complainant could not recall exact words or dates of these events. The Complainant referred to an email he sent to the Respondent on 10 March 2023 stating that he faced a toxic environment in the context of his work colleague criticising the Palestinian cause. The Complainant did not dispute that this email was sent post his dismissal on 24 February 2023.

The Complainant said that at the start of October 2022 he was asked by the Deputy General Manager, Mr Harnett why the Complainant did not serve alcohol. The Complainant said that it was because of his religion. The Complainant said at that time that he would write to Mr Harnett by email. The Complainant referred to an email dated 7 October 2022 in which he outlined the views on wearing gloves while moving alcohol glasses. The Complainant stated in his email that in his three months with the Respondent “there is no problem at all with respect to my religion.” The Complainant said that he received no response to this email. He said that he rarely worked alone so his colleagues would have served alcohol and he would do hoovering, mopping, etc. The Complainant said that the Deputy GM took it on board, although he inquired if the Complainant’s religion would allow him to move glasses when wearing gloves.

The Complainant confirmed that he was never disciplined for not serving alcohol. The conversation “went away”. He said that there was another Muslim person working with him who served alcohol.

The Complainant said that the incident with the room entry happened in February 2023 but it had nothing to do with his religion.

He also said that he wanted to improve his education and started a course in November 2022, he wanted to work less days.

Regarding the incident with entering the room, the Complainant said that the room in question was used for a long time as a storage room, a ‘garage’. There was no email to suggest that the room was in use. It was not his job to be aware of rooms availability. He said that there could be a number of rooms out and then brought back.

The Complainant said that every floor has a protocol regarding a fire check. When he walked on the third floor, he heard some noise in the room in question. He knew the room was used as storage so he opened the door and found his work colleague staying overnight in the room. The Complainant said that they worked together that night and his colleague did not tell him that he was staying in the room. They went together to the staff canteen. The Complainant told his colleague that he would sleep in the room as well, and he lay down. The Complainant told his colleague not to escalate the issue, that the colleague should have had the decency to tell him that he was staying in the hotel. The colleague asked him for the master key to get back to the room. The Complainant them went back to get the key. He thought it was sorted.

The Complainants said that the management should have let it be solved between him and his colleague. He agreed that the colleague reported the matter to management but he felt that it was escalated to get rid of him.

In cross-examination, the Complainant confirmed that he never raised the issue of the alleged inappropriate comments by the work colleague with the management.

The Complainant agreed that it was his job to ensure security of the guests. It was put to the Complainant that, while his evidence was that it was not his job to be aware of availability of bedrooms, point 10 of his job description showed that it was.

The Complainant confirmed that he was trained in the property management system (Opera) system, which facilitates printing an available/occupied rooms report. He also confirmed that he completed online training on alcohol serving, bar service and change of kegs.

It was put to the Complainant that at no point did he raise with the Respondent that he would not serve alcohol or that he could not be close to alcohol. The Complainant said that no one started a conversation on that so he just went along. He confirmed that all his colleagues served alcohol. He confirmed that no issue had arisen until September 2022.

The Complainant agreed that on 30 September 2022 he had a conversation with the Deputy GM about him not collecting glasses because of his religious beliefs. The Complainant said that he thought that the Deputy GM would understand him as all his colleagues did. He agreed that his email of 7 October 2022 to the Deputy GM confirmed that staff had no issue with that. 

The Complainant said that the Deputy GM referred to a colleague who is a Muslim who served alcohol. He also asked if the Complainant would be able to serve alcohol if he was wearing gloves.  The Complainant asked Imam for guidance and was told that it would be circumventing his beliefs.

It was put to the Complainant that there is some variation of adherence to the rule.

It was put to the Complainant that in his email of 7 October 2022 he stated that he believes that the Respondent “respects all religions and does not differentiate between them and welcomes everyone”. The Complainant did not dispute that.

The Complainant confirmed that after this email he was never again asked to serve alcohol, clear glasses, etc.

The Complainant confirmed that he never raised any issues with his work colleague’s alleged comments until 10 March 2023, after the dismissal. The Complainant agreed that there was nothing during the investigation, disciplinary and appeal stages that would suggest that his dismissal had anything to do with his race and/or religion. He confirmed that the only time he mentioned religion and race was on the WRC referral form.

The Complainant accepted that the minutes exhibited were accurate reflection of the disciplinary hearing. He did not dispute that he accepted that entering the room was an error of judgement. He accepted that alleging now that he thought that his dismissal was on the grounds of his religion or race was inconsistent with the minutes.

The Complainant accepted that he successfully passed probation, during which period the Respondent could have terminated his employment if it had any issues with the Complainant’s performance.

The Complainant agreed that if a room was out of use, it would be marked in the system as “maintenance”.  He knew that the room in question was unoccupied but he heard a sound. He did not check the system.

It was put to the Complainant that he admitted having made an error, so the Respondent was entitled to issue a disciplinary sanction. The Complainant said that if he went into a “proper” room, he would have followed the protocol.

In his concluding remarks, the Complainant said that the coworker should have notified him that he made a complaint to management regarding his entering the room. He said that instead of resolving it between the two of them, the Respondent decided to dismiss him.

The Complainant further said that the Respondent should have notified him specifically that the room was back in use.

The Complainant further said that if it was a guest in the room, he could understand the dismissal but it was a work colleague. He felt that he should have been respected more.

In reply to the Adjudication Officer’s question, the Complainant said that there were occasions when the times of his prayers were not respected. However, he could not recall any specifics.

The Respondent submits that the Complainant’s claims regarding the alleged unfair dismissal and industrial relations issues pursuant to section 13 of the industrial Relations Act, 1969, have already been addressed by the Labour Court in its Recommendation No. LCR22823 dated 18 September 2023.

The Respondent submits that the Complainant’s claims are misconceived, not properly constituted and/or wholly without merit. The Complainant has failed to make out a prima facie case of discrimination on the grounds of either race or religion.

The Parties

The Complainant was employed by the Respondent as a Night Duty Manager from on or around 30 June 2022 to 24 February 2023. The Complainant had approximately 7 months service with the Respondent before his employment was terminated on the grounds of misconduct.

The Respondent is a limited liability company involved in the provision of accommodation and food services.

Discrimination claim

The Complainant has asserted that in dismissing him, the Respondent acted in a discriminatory manner on the grounds of both his race and religion. The Complainant alleges that the Respondent’s decision to dismiss him was informed by his stated “inability to sell or serve alcohol, which was part of my job, due to my religious beliefs as a Muslim.”.

From the outset, the Respondent wishes to express its grave concerns about such serious allegations being levelled against it in this way by the Complainant. The Respondent vigorously rejects such assertions as entirely baseless and without merit.

Indeed, receipt of the relevant complaint form represented the first occasion on which such spurious allegations were ever brought to the attention of the Respondent, whether by the Complainant or otherwise. It is relevant to note that throughout the investigation and disciplinary hearing referred to below, the Complainant made no reference to any alleged discrimination against him, whether on race or religion grounds. Indeed, the Complainant made no mention of discrimination in his subsequent appeal.

Employment history

The Complainant commenced employment with the Respondent as a Night Duty Manager on 2 July 2022 pursuant to a contract of employment dated 30 June 2022. The Complainant’s contract of employment refers to the Respondent’s staff handbook and its disciplinary procedures and the Complainant was furnished with same when he started employment.

In addition, the Complainant was furnished with a detailed job description document. Amongst the functions expressly listed as the main purpose of the job of night duty manager is the provision of security to the Respondent’s guests during the night in line with hotel guidelines and all standard operating procedures.

On commencement, the Complainant underwent detailed training in relation to hotel protocols and procedures.

Misconduct incident

Prior to the misconduct issue in question, the Complainant had been reported as missing and uncontactable during his shifts. He had been advised that he was not permitted to disappear and was required to be contactable at all times.

At 4.12am on 5 February 2023, the Complainant entered one of the Respondent’s guest rooms without knocking and without first checking whether it was booked in the Respondent’s computer system, Opera. There was no legitimate reason for the Complainant to have entered this room at this time.

It is a fundamental requirement that all staff who have been provided with access keys to guest rooms ensure that any room they wish to enter is not occupied before entering the room.

By entering the room without permission, the Complainant broke the Respondent’s protocols in a number of fundamental respects. While a guest in the hotel, a person’s room is comparable to their dwelling place and the security and comfort of that person is paramount.

Investigation meeting

An investigation into the incident was subsequently carried out by Sarah Millea, Group HR Manager. Ms Millea met with the Complainant on 9 February 2023. During the said investigation meeting, the Complainant admitted to entering room using his master key without first checking the property management system to see if a guest was registered to the room and entered the room without knocking and announcing himself despite knowing that an individual was there.

By letter dated 10 February 2023 Ms Millea wrote to the Complainant to advise that he was being suspended on full pay following the admission made by the Complainant during the investigation meeting. The Complainant was invited to a disciplinary hearing on 14 February 2023 to be conducted by Damien Hartnett, Deputy General Manager. The Complainant was advised of the purpose of the disciplinary hearing and informed of his right to be accompanied. The Complainant was told that the hearing was to discuss his conduct and breach of company policy. The Complainant was advised that the Respondent considered it a very serious matter and, while confirming that no decision had been made, he was warned that it could result in his summary dismissal.

The minutes of the investigation meeting were also sent to the Complainant at this time.

Disciplinary hearing

While initially scheduled for 14 February 2023, owing to the Complainant’s unavailability, the disciplinary hearing was rescheduled on two occasions and did not take place until 22 February 2023. The hearing was chaired by Damien Harnett and a notetaker was present. The Complainant was accompanied at the hearing by a colleague, Dr Bashir.

During the disciplinary hearing, the Complainant confirmed that he had entered the room in question without knocking but maintained that variously he thought the room was ‘out of service’ or that it was an invalid room. It should be noted that rooms can and regularly do change from being guest rooms that are in use sometimes and not in use for guests on other occasions. This in no way obviates the fundamental requirement of a master key holder to check whether a guest is registered as staying in a given room before entering it, let alone entering it without knocking or announcing oneself.

The Complainant accepted that the room in question was in fact booked in the Respondent’s computer system, Opera. It was accepted that had the Complainant checked the room on the relevant system this would have been clear. The Complainant referred to this as an error on his part.

During the hearing, the Complainant claimed that he thought the room was empty and that he was checking it to see if it was safe. He indicated that he suspected that someone was stealing something in the room and that he knew the room previously had air conditioning problems. The Complainant admitted that he failed to check the Respondent’s computer system before entering the room.

It was confirmed to the Complainant that the incident in question was capable of constituting an act of gross misconduct as it could be deemed as a serious breach of rules, policies or procedures, especially those designed to ensure safety, as detailed in Section 2.1.4.2 of the Respondent’s team handbook. The seriousness of the incident was made clear to the Complainant. The Complainant’s witness accepted that the Complainant’s “actions were totally wrong” but asserted that the Complainant had done it “due to a sense of responsibility and to check out the room to ensure it was ok as he was not working in work for the week before.” Dr Bashir agreed that the Respondent “could be held seriously liable due to this incident” and went on to express his views on the Complainant’s “error in judgement” and his stated “sense of responsibility” as a basis for his actions.

By letter dated 24 February 2023, Mr Harnett wrote to the Complainant to confirm that the Respondent had decided to terminate his employment on the grounds of gross misconduct but that he would be paid one week in lieu of notice. Mr Harnett made it clear that he had considered the Complainant’s defence to his actions but that he did not accept this explanation. The Complainant was advised of his right of appeal to the Respondent’s General Manager, Donnacha Hurley.

Appeal

By letter dated 1 March 2023, the Complainant wrote to Mr Hurley appealing Mr Harnett’s decision on behalf of the Respondent to dismiss the Complainant. The Complainant set out a series of grounds of appeal in the said letter.

An appeal was carried out by Mr Hurley who ultimately upheld the decision to dismiss the Complainant. Mr Hurley confirmed that he had considered the points raised by the Complainant and had reviewed the relevant materials before reaching his decision. Mr Hurley asserted that the Complainant had not provided any mitigating circumstances or new evidence that would warrant his rescinding or varying the decision to dismiss the Complainant.

Conclusion

The Respondent conducted a fair and thorough disciplinary process and it was within its right to determine that the Complainant had breached fundamental hotel policies warranting his dismissal.

The Complainant has failed to make out a prima facie case of discrimination.

Summary of direct evidence of Ms Millea, HR Manager

Ms Millea said that the Respondent employs diverse, multicultural staff with different backgrounds. If the Respondent is made aware of religious concerns or requirements, it tries to offer accommodations.

Ms Millea said that the Respondent would not differentiate between a staff member or a guest once booked in.

She said that the Respondent’s training is very intensive and comprehensive. Staff are trained that if you stay in a hotel, it is your home, it is fundamentally wrong for someone to walk into a room. It is a privacy and security issue.

Ms Millea said that staff are required to check the property management system, the Respondent does not send emails as to what rooms are out for maintenance or back.

Ms Millea said that she conducted the investigation. She met the Complainant; it was a fact finding meeting. Ms Millea said that she was not aware of the issue with alcohol serving at all at that stage. She said that in her letter of 10 February 2023 she informed the Complainant that it was a serious matter. After 10 February 2023 she had no further role in the process.

The Complainant was offered the opportunity to cross-examine the witness but chose not to avail of same.

Summary of direct evidence of Mr Damien Harnett, Deputy General Manager

Mr Harnett stated that he is a Muslim himself, he converted in 2012.

He said that he would have met with the Night Porters in a regular basis, also during shifts change over. He would have checked their shills etc. to ensure that they know how to do everything.

The Deputy GM said that the Complainant never raised any issues but at some stage in September 2022 it came to his attention that the Complainant did not collect empty glasses. The Deputy GM explained that bar staff are scheduled until 2am. It is the Night Porter’s job to clean up any glasses left around after 2am. He said that he spoke with the Complainant who told him that he could not touch glasses. The Deputy GM tried to figure out a resolution and suggested wearing gloves. The Complainant said that he did not know if that was an option and would have to check that. The Complainant then emailed him with an Imam’s response. The Deputy GM said that he did not push the issue any further. He decided to accommodate the Complainant’s beliefs and continue with other duties he did.

The Deputy GM said that he has been 25 years in the business and worked with people of a variety of religions. In his previous role as a Food and Beverage Manager, the majority of his bar staff were Muslim. It was never flagged to him by the Complainant that he could not serve alcohol. He was prepared to accept that and the Complainant was never again asked to do so.

The Deputy GM confirmed that he had no involvement at the investigation stage.

The Deputy GM explained that a Night Porter is in full control of the whole hotel during the night and is responsible for safety and security of everyone in the hotel. Trust is fundamental. He said that the hotel is a home away from home. He said that if he could not trust a Night Manager to deal with issues correctly, trust would be gone.

The Deputy GM said that the protocol in terms of entering guest bedrooms must be adhered to. Even if the Complainant heard noise in the room, he should have knocked, announced himself before entering.

The Deputy GM said that he conducted the disciplinary hearing and decided to terminate the Complainant’s employment. He said that he looked at everything but the Complainant did not seem to understand the seriousness of the incident. He communicated the decision by letter of 24 February 2023. The Complainant was informed of his right to appeal this decision.

The Deputy GM said that the Complainant’s race, religion or the alcohol serving issue had no bearing on his decision to dismiss.

The Complainant was offered the opportunity to cross-examine the witness but chose not to avail of same.

Summary of direct evidence of Mr Donnacha Hurley, General Manager

The GM said that he has been 16 years with the Respondent and worked with a diverse range of employees, particularly since Covid-19 pandemic. He said that it would be difficult in a hotel not to do so.

The GM said that they don’t ask employees or prospective employees about their religion. He said that they ask as little as is required, the Respondent is aware of equality legislation.

Regarding the matter of alcohol serving, the GM said that he only heard about it when the Complainant’s email of 7 October 202 arrived. He said that it was not operationally ideal but the Respondents was happy to accommodate the request. The GM said that if the Respondent heard that before the commencement of employment, it could probably take it into consideration as serving alcohol was an essential part of the job. However, he said, that at that stage the Complainant was in the job already, trained, so the Respondent’s decision was to accommodate him.

The GM said that his first step was to check that the process was carried out properly and then to see if there was anything new in the appeal. The GM said that he reviewed the Complainant’s appeal carefully but there was nothing new introduced, no mitigation, no reason for him to overturn the decision to dismiss the Complainant.

The GM confirmed that it employs approximately 70 staff, none was asked about their religion. However, a chef made a request for time and space to carry out his prayers and it was accommodated and arranged.

The Complainant was offered the opportunity to cross-examine the witness but chose not to avail.

Concluding remarks

Mr Lowey, BL submitted that the Complainant bears the burden of showing a prima facie case and he did not do so.  It is clear that the Respondent has a diverse staff and it was tolerant of the Complainant’s refusal to serve alcohol.

Regarding the alleged conflict with a work colleague, the Complainant never raised it with the Respondent until after the dismissal.

The Complainant made a number of significant admissions, including that entering the room was an “error of judgement”. The Complainant did not accept that any sanction could or should be given. The Complainant accepted that it was only after the dismissal that he thought of discrimination.

Ms Lowey BL submitted that the HR Manager was not aware of the Complainant’s inability to serve alcohol and the Deputy GM accepted the Complainant’s stipulation regarding his restrictions to work with alcohol. After their communication in September / October 2022, he never required the Complainant to work with alcohol.

The Complainant’s religion or race had nothing to do with his dismissal.

The Complainant referred his claim to the Director General of the WRC on 25 April 2024 alleging that he was discriminated against by the Respondent by reason of his religion and/or his race in conditions of employment, and that he was dismissed for discriminatory reasons.

The Respondent rejects the complaints.

In reaching my decision, I have considered all the submissions and evidence both written and oral presented to me.

Discrimination

Section 6(1) of the Employment Equality Acts provides that 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) …..”. 

Section 6(2)(h) of the Acts defines the discriminatory ground of race as follows – (h) that they are of different race, colour, nationality or ethnic or national origins (in this Act referred to as “the ground of race”).

Section 6(2)(2)(e) defines the discriminatory ground of religion as (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”),

8. Discrimination by employers etc.

(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.

(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.

Burden of proof

Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination.  It requires the Complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination in relation to him.  If he succeeds in doing so, then, and only then, is it for the Respondent to prove the contrary. 

The WRC and the Labour Court have held consistently that the facts from which the occurrence of discrimination may be inferred must be of “sufficient significance” before a prima facie case is established and the burden of proof shifts to the Respondent. 

In deciding on this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the Complainant. It is only where such a prima facie case has been established that the burden of proving there was no infringement of the principle of equal treatment passes to the Respondent. The Labour Court elaborated on the interpretation of Section 85A in the case of Melbury v Valpeters EDA0917where it held that Section 85A:

"…. 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. 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.”

In Cork City Council v McCarthy EDA0821, the Labour Court stated as follows about the burden of proof:

“The type or range of facts which may be relied upon by a complainant can 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.”

In order to shift the burden of proof to the Respondent, the Complainant must not only establish the primary facts being relied upon but must also establish that those facts are of sufficient significance to raise an inference of discrimination.

In Margetts v Graham Anthony & Company Limited EDA038, the evidential burden which must be discharged by the Complainant before a prima facie case of discrimination can be said to have been established was further outlined by the Labour Court. The Labour Court stated as follows:

“The mere fact that the complainant falls within one of the discriminatory grounds laid down under the Act is not sufficient in itself to establish a claim of discrimination. The complainant must adduce other facts from which it may be inferred on the balance of probabilities that an act of discrimination has occurred.”

Comparator

Section 28 of the Acts in relevant parts provides that:

“28. The comparators

(1) For the purpose of this Part, “C” and “D” represent 2 persons who differ as follows:

(d) in relation to the religion ground, C and D have different religious beliefs or C has a religious belief and D does not, or vice versa;

(g) in relation to the ground of race, C and D differ as to race, colour, nationality or ethnic or national origins or any combination of those factors;”

Time limit

Section 77 provides as follows:

”(5)(a) Subject to paragraph (b), a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of occurrence of the discrimination or victimisation to which the case relates or, as the case may be, the date of its most recent occurrence.

(b) On application by a complainant the Director General or Circuit Court, as the case may be, may, for reasonable cause, direct that in relation to the complainant paragraph (a) shall have effect as if for the reference to a period of 6 months there were substituted a reference to such period not exceeding 12 months as is specified in the direction; and where such a direction is given, this Part shall have effect accordingly.

(c) This subsection does not apply in relation to a claim not to be receiving remuneration in accordance with an equal remuneration term.

(6) Where a delay by a complainant in referring a case under this section is due to any misrepresentation by the respondent, subsection (5)(a) shall be construed as if the references to the date of occurrence of the discrimination or victimisation were references to the date on which the misrepresentation came to the complainant's notice.

(6A) For the purposes of this section—

(a) discrimination or victimisation occurs—

(i) if the act constituting it extends over a period, at the end of the period,

(ii) if it arises by virtue of a term in a contract, throughout the duration of the contract, and

(iii) if it arises by virtue of a provision which operated over a period, throughout the period,

(b) a deliberate omission by a person to do something occurs when a person decides not to do it, and

(c) a respondent is presumed, unless the contrary is shown, to decide not to do something when the respondent either—

(i) does an act inconsistent with doing it, or

(ii) the period expires during which the respondent might reasonably have been expected to do it.’

The time limits which govern the referral of complaints under the legislation are provided for in Section 77 of the Acts (as set out above). The effect of these provisions is that the Complainant can only seek redress in respect of occurrences during the six-month period prior to the date on which the claim was received by the WRC unless the discrimination in issue is part of a continuum of events.

The Complainant referred the within complaint to the Director General of the WRC on 25 April 2024. Therefore, the cognisable period for the purpose of the complaint in accordance with the time limits provided for in Section 77 of the Acts is the six-month period prior to the referral of the complaint, namely from 26 October 2022 to 25 April 2023.

The issue for consideration by me is whether or not the Complainant as Palestinian national of Muslim faith was subjected to discriminatory treatment on the grounds of race and/or religion and whether he was dismissed for discriminatory reasons.

To determine whether the Complainant has established a prima facie case a three-tier test is employed:

·        the Complainant must establish that he is covered by the relevant discriminatory ground;

·        he must establish that the specific treatment alleged has on balance occurred; and

·        it must be shown that the treatment was less favourable than the treatment which was or would have been afforded to another person in similar circumstances not covered by the relevant discriminatory ground.

As highlighted in the Valpeters decision: “the Complainant must first establish facts from which discrimination may be inferred” and that such facts must “be of sufficient significance to raise a presumption of discrimination” and “must be established as facts on credible evidence.  Mere speculations or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn.”

There was no dispute that the Complainant is a Palestinian national and of Muslim faith. While initially the Respondent might have been unaware of the Complainant’s religion, clearly after the events in the end of September and beginning of October 2022, the Respondent was made aware that the Complainant is a Muslim.

With regard to the alleged discrimination in conditions of employment, the Complainant did not offer any evidence as to why he believed he was treated less favourably in the context of his conditions of employment than another person is, has been or would be treated in a comparable situation on the grounds of his race or religion. In fact, the Complainant intimated that he was permitted to pray at the times required. The evidence before me also shows that serving alcohol and clearing glasses was an essential part of the Complainant’s role. The Complainant completed a “Responsibly Serving Alcohol” course on 1 July 2022. He never made the Respondent aware that his beliefs precluded him from serving alcohol and clearing glasses, essentially performing part of his role. However, once the Respondent became aware of the matter and clarified it with the Complainant, the Complainant, unlike other Night Porters, was permitted to continue in his role without carrying out this part of it.

I find that the Complainant did not establish a prima facie case of discrimination on the grounds of race and/or religion in the context of conditions of employment.

Regarding the Complainant’s allegation that the decision to dismiss him was on the basis of his religious beliefs and/ or race, I find that at no stage throughout the investigation and the disciplinary process did the Complainant suggest that his race and/or religion could have influenced the decision makers. At the adjudication hearing the Complainant confirmed that the incident when he entered a hotel room without knocking and announcing himself, had nothing to do with his race or religion. He confirmed that it was after the dismissal that he thought of raising the allegation of discrimination. The Complainant further confirmed that at no stage, until he submitted the second WRC complaint form, did he think that he was discriminated against.

The above, of course cannot determine the within claim. The fact that the Complainant did not think of discrimination at the time, does not mean that discrimination could not have taken place.

However, even at the time of the adjudication hearing, the Complainant himself did not seem to be persuaded that his dismissal was due to his religion and /or race. In his submission, the Complainant also alleged that his dismissal was influenced by the Respondent’s dissatisfaction with his decision to enrol in a technical support course. He suggested that the Respondent was unhappy with him trying to further his education.

The Complainant did not dispute that he entered a hotel room without knocking and announcing himself. He admitted that he would understand the Respondent’s action if the room was occupied by a guest not by a staff member. I note the Respondent’s assertion that this is of no relevance. The protocol in the context of entering a hotel room is in place for all hotel rooms regardless of who occupies them. The Respondent followed its disciplinary process and, as a result a decision was made to terminate the Complainant’s employment.

The Complainant made general allegations that he was treated less favourably because of his race and/or religion, without any specific evidence to support these assertions. There was nothing put before me that would suggest that a comparator of a different race and/or religion was or would be treated more favourably. While the Complainant may believe that the sanction imposed was disproportionate, this is not a matter for this investigation.

The obligation rests with the Complainant to provide credible evidence to raise the allegations to meet the standard of “established facts.” As set out in Melbury Developments Ltd. V Valpeters cited above “mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn.” In the instant case, the Complainant made a number of allegations relating to the decisions of the Respondent. However, I am not satisfied that I have been presented with evidence from which I could reasonably conclude that the Complainant was discriminated against by the Respondent on the ground of race and/ or religion.

I declare this complaint to be not well founded.

I decide that the Respondent did not discriminate against the Complainant on the grounds of his race and/or religion in the context of his conditions of employment.

I decide that the Complainant was not dismissed for discriminatory reasons.

Race – religion - discrimination