ADJUDICATION OFFICER DECISION & RECOMMENDATION

Adjudication Reference:  ADJ-00044525

Parties:

Complaint/Dispute:

Date of Adjudication Hearing:  17/11/2023

Workplace Relations Commission Adjudication Officer:  Aideen Collard

Procedure:

This complaint under Section 77 of the Employment Equality Acts 1998-2015 and dispute under Section 13 of the Industrial Relations Act 1969 were referred to the Workplace Relations Commission (hereinafter ‘WRC’) on 13th February 2023.  Following delegation to me by the Director, I inquired into same and gave the Parties an opportunity to be heard and to present any relevant evidence.  I heard this complaint and dispute by remote hearing on 17th November 2023 pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and S.I. 359/2020.  The Complainant was represented by Mr Shane Kiely BL instructed by McGroddy Brennan Solicitors and a former client also gave evidence on his behalf. 

A HR Company had provided a comprehensive submission on behalf of the Respondent but as it was unavailable for the hearing, Mr A, the Area Manager presented its case.  He also gave evidence along with the Complainant’s former Line Manager, Mr B and the Cleaner, Ms C was present to answer any queries.  This Adjudication Officer outlined the changes to procedure under the Workplace Relations (Miscellaneous Provisions) Act 2021.  Both Parties proffered comprehensive written submissions and documentation. 

Preliminary Issues

At the outset, it was confirmed that the complaint under the Employment Equality Acts 1998-2015 pertained to discrimination and harassment on the ground of sexual orientation along with ensuing victimisation.  A constructive dismissal based upon the same factual matrix was also being pursued as a dispute under Section 13 of the Industrial Relations Act 1969 (as the Complainant did not have the requisite 12 months’ service for a complaint under the Unfair Dismissals Act 1977).  Notably, this was not pursued as a discriminatory dismissal.  The hearing was heard in private in accordance with Section 13(8) of the Industrial Relations Act 1969.  All of the contested evidence was taken on oath.  The Respondent maintained that it had been unaware of the Complainant’s sexual orientation during his employment and hence any perceived adverse treatment (which was denied) could not constitute discrimination, harassment and victimisation.  I deemed it necessary to hear all the evidence and determine this issue substantively.  At the hearing, the Complainant indicated no objection to publication of the Parties names.  Post-hearing, a request was made on his behalf for anonymisation.  I deemed it appropriate to anonymise this decision owing to the sensitive personal information pertaining to the Complainant’s sexual orientation and mental health status.  Accordingly, I direct that no details are published that might identify the Parties.  As both the complaint and dispute are anonymised, there is no requirement for a separate decision and recommendation.  All the evidence, documentation and submissions proffered have been fully considered.

Background:

The Complainant was employed by the Respondent as a part-time Personal Trainer in one of its gyms between 13th April 2022 and his resignation on 25th August 2022.  He complained that the Respondent had discriminated against him and harassed him on the ground of sexual orientation and had further victimised him.  He sought compensation by way of remedy.  On behalf of the Respondent, it was submitted that as the management and employees against whom these allegations were made had no knowledge of the Complainant’s sexual orientation at the material time, the adverse treatment complained of (which is denied) cannot constitute discrimination, harassment and victimisation as alleged.  With less than the requisite 12 months’ service for a complaint of unfair dismissal, the Complainant also referred a dispute contending that the Respondent’s conduct towards him had forced him to resign thereby constituting a constructive dismissal.  The Respondent submits that the Complainant had resigned of his own accord without bringing these matters to the Respondent’s attention or availing of its Grievance Procedures.

Summary of Complainant’s Case:

Direct Evidence of the Complainant

The Complainant gave evidence supplementing his written submissions.  Having qualified as a Fitness Instructor and unable to find suitable work locally, he responded to an advertisement for a part-time position with the Respondent 32km away from his home.  Following a successful interview with his Line Manager, Mr B, he commenced employment as a Personal Trainer with one of its gyms (‘the Gym’) on 13th April 2022.  He signed a contract for 20 hours work per week and earned €10.50 per hour or €1000 gross monthly.  His first contract was mislaid so he had signed a second copy along with confirmation that he had received and read the Company Handbook including a Dignity in Work Policy and Grievance Procedures.

For the first three months, the Complainant got on very well in his employment and was happy in the job.  The hours were equally split between the three part-time personal trainers to cover the opening hours.  Although he had been contracted to work 20 hours per week, the Complainant was routinely rostered for 35-40 plus hours per week which had suited him.  On 18th July 2022, a family member in a private Facebook group screen-grabbed some posts pertaining to his sexual orientation and ‘outed’ him as bisexual by posting them in various places online.  Although the Complainant had the material removed within hours, he believes that staff of the Gym who were also his Facebook friends including Mr B and the Cleaner, Ms C may have seen these posts.  However, he had no evidence to confirm that they had ever seen this material.

The Complainant was very depressed as a consequence of this public ‘outing’ and the morning afterwards, had come into work very upset and emotional.  Ms C and a gym member had calmed him down and he had been able to recompose himself and get on with his work.  Apart from saying ‘hi’ when he came in later, Mr B had ignored him that day remaining in the office.  From that time onwards, Mr B’s behaviour towards him changed and became progressively worse over time.  Instead of his usual greetings, Mr B ignored the Complainant and avoided eye contact and whenever Mr B had to speak to him, was short and snappy. 

The Complainant remained upset owing to his personal difficulties but got on with his work.  On 28th July 2022, Mr B had ignored him again and spoken to Ms C about looking for a new female personal trainer.  He then confirmed that he had hired a woman whom the Complainant had introduced him to from his personal training course and that she would be working a 12-hour week to cover breaks and days off.  On 29th July 2022, Mr B posted the roster on the staff WhatsApp group, and to his surprise the Complainant saw that only his hours had been cut by half down to 18 hours with the remainder assigned to the new personal trainer.  Mr B had assigned 32 hours to himself and 33 hours and 35 hours respectively to the other two personal trainers.  The Complainant had the furthest to travel and three children and questioned why his hours were being cut the most.  He had complained to Mr B that after his travel costs, the cut in his hours made his employment financially unfeasible.  He was informed that the staff hours had to be cut back and he could either take his hours during the week or over weekends to reduce travel costs.  He began to believe that he was being treated differently and was being pushed out of the Gym owing to being ‘outed’. 

The Complainant messaged and met with Mr A remotely in early August 2022 to voice his concerns in relation to the drastic cut in his hours and Mr B’s treatment of him.  He had felt that the meeting was one-sided and Mr A had been dismissive of him.  He had informed Mr A that owing to the cut in his hours and Mr B’s treatment of him he felt like he was being pushed out of the Gym.  He did not mention to Mr A his belief that this was a consequence of his sexual orientation becoming known because he could not say this for certain at the time.  Mr A had been defensive of Mr B and suggested that the Complainant should look for additional hours in other gyms including another branch, leaving him feeling deflated and defeated.  The Complainant had made enquiries seeking additional work in the other gyms but was unsuccessful.  He felt that this treatment was now coming from the top and he was no longer welcome.  Following their meeting, Mr A had attended at the Gym and met with Mr B in the office, arising from which the hours for all the other staff were also cut.  The Complainant believed this had been done to make the initial disparity look less obvious.  Two versions of a roster for the first week of August 2022, one showing only a cut in the Complainant’s hours and another showing a cut in the hours for all the other staff were submitted.

The Complainant had no alternative but to accept the reduced hours.  For the remainder of his employment, he felt as if he was walking on eggshells.  The hostile treatment from Mr B continued and on one occasion when he was in bad humour, the Complainant thought he had overheard him saying “f*cking steamer”.  A contractor renowned for his inappropriate commentary had also made derogatory references to him being gay.  He felt that the posting of a BBC 1980’s Tony Britts ‘That’s It’ fitness video by the new personal trainer (whom he had confided in about his sexual orientation) on the staff WhatsApp group on 14th August 2022 and a post from Mr B underneath: “You & (the Complainant) double act!” were also directed towards him.  He had posted in response: “For the record, I am only half-gay.”  He did not report these matters to Mr A at the time.  He speculated that because he had also confided his sexual orientation with Ms C, this had been “gossiped” back to Mr B.  He no longer wished to work in this hostile environment and after finding another part-time position resigned giving 7 days’ notice.  He had come into the job enthusiastically but had left mentally and emotionally broken and deflated.  His resignation letter stated:

“Please accept this as an official 7 days’ notice of my intention to leave (the Respondent’s) Gym.  I feel that my position in (the Gym) is no longer sustainable.  I simply cannot survive on a take home packet of just €82 a week after travel and tax with a family to support and (the Respondent’s) business model is unworkable for me as a fitness professional as it does not provide a living wage.  As it currently stands the only ones coming out on top are (the Respondent’s) gym.  One on one PT sessions will not pay me with (the Respondent) taking 70% of the commission and uptake… being almost zero between members affordability and trying to hustle for clients in an almost empty gym, on top of this I feel genuinely undervalued, deflated, unmotivated and somewhat exploited and I know I am not the only PT in (the Gym) who feels this way and I have been suffering constant anxiety and depression over my inability to provide for my family and pay my bills for the past few weeks.  While I enjoyed my employment with (the Respondent) for the initial month when hours were plentiful and pay was survivable, I felt that the dilution of my hours, the severe drop on pay and the obvious changes in how I feel I have been treated as a staff member have forced me to make this decision.  My last day at (the Gym) will be August 25th, 2022.  I would be happy to meet you to discuss in detail my other reasons for leaving and offer you an opportunity to offer me a solution should you wish to keep me on as a PT.  However, as stated, should I fail to hear back from you, my last day at (the Gym) will be August 25th 2022.  Thank you for the opportunity to work at (the Gym).”  Regarding the absence of any reference to the subject-matter of this complaint, the Complainant contended that Mr A should have queried with him what he meant by: “I would be happy to meet you to discuss in detail my other reasons for leaving and offer you an opportunity to offer me a solution should you wish to keep me on as a PT.”

On 15th August 2022, the Complainant objected to a post on the staff WhatsApp group which he felt unfairly portrayed a client of the Gym.  Thereafter, he was the only person to be removed from the group.  He had another run-in with Mr B when Mr B had sought to ‘strongarm’ a client from him who had booked personal training classes with the Complainant thus depriving him of the additional income.  On 24th August 2022, the night before his last day of employment, he had posted a one star review of the Gym in his own name: “It was a gym that had potential if they didn’t have such disregard for the well being of their personal trainers mental health, I was subjected to homophobic video posts and remarks in this place and my complaints got ignored and swept under the carpet, hours slashed and pushed and bullied out the door.  It was an experience I’ll not repeat any time soon.”  When the Complainant arrived for his last day of work early the following morning, he was met outside by Mr B.  He said: “good morning”, to which Mr B replied: “you don’t have to work your shift today you can f*ck off home”.  When The Complainant asked why, Mr B responded: “Why? Because of your f*cking review that’s why.”  He further stated: “You are not welcome here, you are not coming in, you can f*ck off home.”  He also told him that he would be paid for the shift.  Accordingly, the Complainant left and Mr B took over his shift and his client.  The Complainant messaged Mr A stating: “I have compiled a case with the WRC regarding bullying, harassment, homophobic videos posted in… WhatsApp group, text messages from (Mr B) attempting to strongarm clients from me, and this morning because of an honest review I was allowed to drive all the way to (the Gym) to be met at the door by (Mr B) and told I’m not coming in to complete my last session with client.  I will expect FULL pay in my bank for all hours worked including and up to today plus my 6 PT sessions.  You will hear from my solicitors.  Take care.”  Approximately six weeks afterwards, the Complainant received a number of text messages from Mr B telling him not to use his name as a reference as “that bridge has been burnt” and derogatorily saying “hope you get the help you need” followed by a ‘laugh out loud’ emoji and “thanks for the laugh”. 

Cross-examination of the Complainant

On behalf of the Respondent, Mr A put it to the Complainant that he had been unaware of the subject-matter of this complaint during his employment and on 28th July 2022, had requested Mr B to reduce the staff hours due to over-rostering whilst the Gym was underperforming.  The Complainant confirmed that he had messaged Mr A in relation to the cut in his hours and Mr B’s treatment of him on the same date and these were the sole issues discussed during their subsequent remote meeting on 4th August 2022.  Mr A apologised if the Complainant felt that the meeting was rushed but he had offered solutions to the cut in hours including seeking hours in another branch.  They had a follow-up message exchange via Microsoft Teams the following day when the Complainant had messaged Mr A stating: “Spoke to (Mr B) briefly we’re going to have a chat.  I know he is a good head coach.  Just hope he understands why I haven’t been myself the last few weeks.”  The Complainant replied that Mr B had not turned up for their meeting but agreed that he had not brought this to Mr A’s attention.  Mr A asked what more he could have done in the absence of any grievance or knowledge of the alleged discrimination.  The Complainant replied that he could have listened more and let him speak more during their meeting.  The Complainant agreed that the alleged comments pertaining to his sexual orientation had occurred from 14th August 2022, also being the date of his resignation letter.  He further agreed that he could not have brought the alleged treatment to Mr A’s attention during their remote meeting at a time when it had not yet occurred.  He said he had not sought a further meeting as he had been “stonewalled” during their remote meeting.  He further confirmed that he had not filed any grievance with the Respondent as “he didn’t want to go down that road at that time.”  

Direct Evidence of a Client

A Client gave evidence confirming that she had been attending at the Gym with her husband at the material time and knew the Complainant.  Initially he had been very enthusiastic, happy and approachable.  The Client had enquired about self-defence classes and the Complainant informed her he had been let down by management in relation to organising them.  The Client then recalls the Complainant becoming sad and seeing him crying a few times.  He had confided in her the disclosure of his sexual orientation to his family causing him to become depressed.  She had also been aware that he had been very upset by the posting of a video on the staff WhatsApp group.  The Client had subsequently left the Gym on bad terms.

Submissions on behalf of the Complainant - Complaint under the Employment Equality Acts 1998-2015

On behalf of the Complainant, it was submitted that the behaviour of the Respondent, its servants and/or agents amounted to discrimination within the meaning of Section 6 of the Employment Equality Acts 1998-2015 as set out in the findings and conclusions below.  Specifically, the Complainant had been ‘outed’ as bisexual and the other employees and management of the Respondent were aware of this.  The Complainant had been subjected to discrimination on the ground of sexual orientation in relation to the conditions of his employment and in particular by having his hours cut, being treated differently by Mr B and being the subject of abuse via the staff WhatsApp group.  Overall, it was submitted that he had met the test for a prima facie case of discrimination as set out in Southern Health Board -v- Mitchell [2001] ELR 201. 

Submissions on behalf of the Complainant – Dispute under the Industrial Relations Act 1969

In relation to the dispute, it was submitted that the behaviour of the Respondent, its servants and/or agents also caused the Complainant to terminate his contract, thereby constituting a constructive dismissal within the meaning of Section 1 of the Unfair Dismissals Act 1977 which provides: “the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer”.  In this respect, reliance was placed upon the established ‘reasonableness’ test for a constructive dismissal.

Summary of Respondent’s Case:

The Respondent maintained that neither its management or employees against whom discrimination is alleged had any knowledge of the Complainant’s sexual orientation at the material time and without prejudice to this position, refutes that he was discriminated against, harassed or victimised in any way.

Direct Evidence of Mr B

At the outset, Mr B confirmed that although he had left the Respondent’s employment shortly after the Complainant, he had made himself available at the hearing to answer any questions.  Under oath, he maintained that he had not seen the public ‘outing’ of the Complainant on Facebook or had been aware of his sexual orientation during his employment.  Mr B confirmed that Mr A had instructed him to reduce the staff hours owing to his over-rostering of hours.  He further confirmed that the Complainant had not raised any grievance with him regarding his alleged adverse treatment of him or discrimination of any kind. 

Cross-examination of Mr B

Under questioning by Counsel for the Complainant, Mr B confirmed that he was the Complainant’s Line Manager at the material time of this complaint.  He again denied being aware of his ‘outing’ on Facebook or any awareness of its existence.  Mr B denied ever referring to the Complainant as a “f*cking steamer” and was unaware of anyone making derogatory comments about him.  He could not recall a reason for the drop in the Complainant’s hours for the first week of August 2022 when the hours of the other staff members had initially remained the same.  He thought it must have been the way that the hours fell based upon the Complainant’s preferences and maintained that there was no malice intended.  He confirmed that he had set up the staff WhatsApp group for the Gym and that Mr A had been unaware of this.  Mr B explained that his comment under the posted video referred to the Complainant and the new female personal trainer as a ‘double-act’ because they held classes together.  He had never been aware of or had any discussion with him regarding his sexual orientation.  He had only been aware of his complaint regarding the cut in hours.  He agreed that he was annoyed at the Complainant’s review but denied using the alleged bad language.  He had sent the text messages as outlined to the Complainant some weeks later because he had hoped that he would get help.  It was put to him that the ‘lol’ emoji and telling him not to use him as a reference as “that bridge has been burnt” was not consistent with having concern.  He confirmed that his message “thanks for the laugh” was in response to a call from the Complainant’s Solicitor instructing him not to have further contact.  He had not believed the Solicitor to be genuine because he had rung him as opposed to writing.  He confirmed that he was not in the Respondent’s employment at the time of sending those text messages.

Direct & Written Evidence of Mr A

Mr A gave evidence confirming that he was the Area Manager for the Respondent who operated five gyms at the time.  He confirmed the Complainant’s employment details as outlined above.  The Complainant had also undertaken personal training classes and been accommodated with weekend hours to reduce his travel costs.  Mr A had been unaware of the Complainant’s sexual orientation or any alleged discrimination arising from same.  The Respondent had recently opened another branch and had expected membership figures to be stronger but they had been slow following recovery from the Covid-19 Pandemic.  Following an end of July 2022 review, in a communique sent to Mr B on 27th July 2022, Mr A had instructed him to reduce staff hours in line with their contracts as there had been over-rostering of staff whilst the Gym was underperforming.  On 28th July 2022, the Complainant had messaged Mr A taking issue with the cut in his hours as being financially unfeasible and asking: “Can you help me with this?  Because unfortunately it is not possible for me to work here under these conditions.  I don’t want to leave here.  I love my team and members.”  Mr A had messaged him back asking him to speak to Mr B as Head Coach first before escalating to Mr A if still required.  He also confirmed receipt of other staff queries regarding the cut in hours and explained that he had been scaling back to contracted hours owing to a trend in over-budget rostering in previous months and the Complainant “100% was not” being pushed out.  Following the Complainant’s request for a meeting, they had a remote meeting on 4th August 2022.  Mr A once again explained that he would be rostered in line with the Gym’s budget and his contracted hours.  He also suggested contacting a head coach in another branch to see if there was a possibility of additional hours.  At no point during this meeting did the Complainant raise any issues regarding the discrimination that he now alleges to have encountered.  A HR Company oversees the Respondent’s HR and had prepared its Handbook containing a Dignity in Work Policy and Grievance Procedures which had been circulated to all of its staff including the Complainant.  He had not raised any grievance and if he had done so, the Company Policies would have been followed to the letter.  With reference to the sentence: “I would be happy to meet you to discuss in detail my other reasons for leaving…”, Mr A had not detected any other reasons for his leaving.  Mr B had undertaken a performance review with the Complainant on 12th August 2022 where he stated that the only ‘negative’ from his role was that he only had 20 hours work per week and wanted a guarantee of 30 hours.

Cross-examination of Mr A

Under cross-examination, Mr A confirmed that his instructions to Mr B had been to cut staff hours across the board.  As Mr B was responsible for the rostering, he could not speak to the cut in the Complainant’s hours for the first week of August 2022.  He confirmed that he had ensured that all staff received their contractual hours.  He also confirmed that he had been unaware of the staff WhatsApp group until this complaint to the WRC.  He had not approved the WhatsApp group and could not speak to its content.

Submissions on behalf of the Respondent - Complaint under the Employment Equality Acts 1998-2015

On behalf of the Respondent, it was submitted that as the employees against whom the alleged discrimination has been made had no knowledge of the Complainant’s sexual orientation before his resignation, the adverse conduct complained of (which is denied) cannot constitute discrimination under the ground of sexual orientation.  The Respondent refutes the Complainant’s contention that he had his hours reduced due to his sexual orientation owing to a third party, unknown to the Respondent ‘outing’ him.  All of the other employees’ hours had been reduced in line with their contracts and accordingly, he was not treated any less favourably.  He had first made reference to his sexual orientation in the staff WhatsApp group on 14th August 2022, being the date of his resignation and first indicated a complaint of homophobic treatment in a negative public online review the night before his last day of work some 9 days after his resignation.  The Complainant had Policies in place including a Dignity in Work Policy and Grievance Procedures as contained in the Company Handbook, which he had access to having signed acknowledgement of receipt.  The Complainant had not raised these concerns with management by utilising the Grievance Procedures.  By his own account he had never brought the alleged homosexual and homophobic remarks made by staff and a contractor on the Gym floor and via the staff WhatsApp group to management’s attention.  In any event, the comment under the video posted on the staff WhatsApp group could not be construed as a homophobic reference.  At no point in any communications did he ever refer to any other issues that were having a negative impact on his role with the exception of the cut in his hours.  Overall, it was submitted that the Complainant had not made out a prima facie case of discrimination, harassment or victimisation under the Employment Equality Acts 1998-2015 requiring rebuttal of same.

Submissions on behalf of the Respondent – Dispute under the Industrial Relations Act 1969

In relation to the dispute under Section 13 of the Industrial Relations Act 1969 asserting constructive dismissal, it was submitted that the Respondent had not dismissed him and he had resigned of his own accord.  He had informed the Respondent that he was resigning as he could not sustain working only 20 hours per week.  However, he was aware that upon commencing his employment and as per his contract of employment that he was hired to work 20 hours per week.  All of the employees’ hours were cut back in line with their contracts of employment as the Respondent could not sustain the cost of over-rostering.  Management had taken all steps to explain this to the Complainant during a number of exchanges and meetings.  Mr A had met with the Complainant on 4th August 2022 and the Complainant also had a performance review with Mr B on 12th August 2022.  Not once during these meetings did he mention any concerns regarding discrimination, harassment or victimisation.  Should the Complainant have raised these concerns with management, the Respondent could have engaged him in the Company’s Grievance Procedures and dealt with them accordingly.  The Complainant further claims that due to his sexual orientation he had been struggling with a “severe mental and emotional breakdown” which was never brought to management’s attention prior to referral to the WRC, and nor did the Complainant submit a medical certificate to the Respondent at any stage.  Should the Complainant have raised these issues with management, they would have been addressed.  Had management being trying to push him out as he contended, no suggestion would have been put forward to contact one of the other branches for additional hours.  The Respondent believes that the Complainant resigned from his position as he had sourced another job closer to home and had also set up his own personal training as advertised online. 

Findings and Conclusions in relation to Complaint Ref: CA-00055048-001:

The issues for my determination are whether the Complainant has made out a prima facie case of discrimination and/or harassment on the ground of sexual orientation and/or any ensuing victimisation contrary to the Employment Equality Acts 1998-2015 and if so finding, whether the Respondent has rebutted same.  It is firstly necessary to set out the requisite statutory provisions as follows:

Section 6(1) of the Employment Equality Acts 1998-2015 provides for complaints of discrimination on nine grounds as follows: “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,…”.  In relation to the ground of sexual orientation, 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- (d) that they are of different sexual orientation (in this Act referred to as “the sexual orientation ground”),…”.  Section 8(1) specifically prohibits discrimination by employers in a number of specified areas including conditions of employment which could encompass the number of hours of work. 

Section 14A provides for the circumstances in which harassment and sexual harassment constitute discrimination.  Section 14A(7) defines sexual / harassment as: “(a) In this section- (i) references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds, and (ii) references to sexual harassment are to any form of unwanted verbal, non-verbal or physical conduct of a sexual nature, being conduct which in either case has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.  (b) Without prejudice to the generality of paragraph (a), such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material.”  Section 14A(2) provides for a defence to employers: “If harassment or sexual harassment of the victim by a person other than his or her employer would, but for this subsection, be regarded as discrimination by the employer under subsection (1), it is a defence for the employer to prove that the employer took such steps as are reasonably practicable- (a) in a case where subsection (1)(a) applies (whether or not subsection (1)(b) also applies), to prevent the person from harassing or sexually harassing the victim or any class of persons which includes the victim, and (b) in a case where subsection (1)(b) applies, to prevent the victim from being treated differently in the workplace or otherwise in the course of the victim’s employment and, If and so far as any such treatment has occurred, to reverse its effects.”

Section 74(1) provides that: ““victimisation” shall be construed in accordance with subsection (2).  (2) For the purposes of this Part victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to- (a) a complaint of discrimination made by the employee to the employer, (b) any proceedings by a complainant, (c) an employee having represented or otherwise supported a complainant, (d) the work of an employee having been compared with that of another employee for any of the purposes of this Act or any enactment repealed by this Act, (e) an employee having been a witness in any proceedings under this Act or the Equal Status Act 2000 or any such repealed enactment, (f) an employee having opposed by lawful means an act which is unlawful under this Act or the said Act of 2000 or which was unlawful under any such repealed enactment, or (g) an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs.”

Section 85A(1) sets out the burden of proof which applies to all complaints of discrimination, harassment and victimisation as follows: “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.”  As referenced on behalf of the Complainant, in Southern Health Board -v- Mitchell [2001] ELR 201, the Labour Court stated: “The first requirement is 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 complainant 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 those 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.”

In Melbury Developments -v- Valpeters, EEA0917, the Labour Court elaborated on what was required to meet the burden of proof under Section 85A of the Employment Acts1998-2015 as follows: “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 must 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.”  The Labour Court further considered the burden of proof in Cork City Council -v- McCarthy EDA0821 as follows: “At this initial stage the complainant is merely seeking to establish a prima facie case.  Hence, it is not necessary for her 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 be reasonably drawn from those facts.”  In Margetts -v -Graham Anthony & Company Limited, EDA038, the Labour Court provided further guidance on the evidential burden which must be discharged by a complainant before a prima facie case of discrimination can be said to have been established 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.”

Applying Section 85A of the Employment Equality Acts 1998-2015 as interpreted by the aforesaid caselaw to the evidence adduced, I find on the balance of probabilities that the Complainant has failed to establish facts from which discrimination, harassment or victimisation may be inferred for the following reasons:

Discrimination:

Taking the Complainant’s case at its height, there is no evidence that Mr B, against whom discrimination is primarily alleged, was aware of his sexual orientation until he obliquely made reference to this on the staff WhatsApp group on 14th August 2022, being the date of his resignation, and in a public online review the night before the last day of his employment.  Specifically, there is no evidence that Mr B had seen his ‘outing’ on Facebook in July 2022 or that Ms C and the new personal trainer had broken his confidence and by his own account, this was mere speculation.  Furthermore, there was nothing in his communications with Mr A that could have reasonably alerted Mr A to these issues.  It therefore follows that any perceived or actual adverse treatment by the Respondent’s employees cannot be attributed to his sexual orientation.

Notwithstanding the aforesaid finding, even if management of the Respondent had been aware of the Complainant’s sexual orientation, I find Mr A’s explanation for the cutback in his hours owing to over rostering whilst underperforming to be credible as (1) it is not in issue that the Complainant along with other staff had been routinely rostered more than their contracted hours; (2) the direction came from Mr A to Mr B at a time when Mr A was unaware of the Complainant’s sexual orientation; (3) it was documented in writing; (4) it is common case that certainly after the first week, all staff had their hours similarly cut and (5) the Complainant also acknowledges that the Gym was “almost empty” in his resignation letter.  If there was a disparity between the cut in the Complainant’s hours and the other staff in the first roster, this is more likely to be explained by other factors such as the way the Complainant’s hours fell.  I am further of the view that Mr A would not have suggested additional hours with another branch if the Respondent had wanted the Complainant out.  The Complainant was also primarily concerned about the cut in his hours as outlined in his performance review on 12th August 2022 and his resignation letter of 14th August 2022, which made no reference to any alleged discrimination, harassment or victimisation owing to his sexual orientation.  Unfortunately the cutback in his hours coincided with a difficult time personally for the Complainant and could have been better handled by the Respondent.  Having rostered the Complainant for significantly more than his contracted hours for a period, he had become reliant on these hours and it would have been reasonable to give him advance notice of the cutback as opposed to simply posting a new roster without any notice.  Had this been done, quite possibly this complaint would not have been brought. 

Harassment:

In relation to the alleged harassment, there is no evidence that Mr B or the contractor were aware of the Complainant’s sexual orientation when they allegedly made derogatory comments, the timing of which was unclear.  Mr B against whom this allegation is primarily directed did not post the video to the staff WhatsApp group and there was nothing about the video or within the related commentary that could be construed as being of a homophobic nature.  It was the Complainant himself who posted about his sexual orientation.  Even if I accepted that Mr B or the contractor had been aware of his sexual orientation and the conduct complained of was of a homophobic nature, the Complainant did not make Mr A aware of this in line with its Dignity in Work Policy in order to afford the Respondent an opportunity to address these allegations and avail of the defence under Section 14A(2) of the Employment Equality Acts 1998-2015. 

Victimisation:

In Department of Defence -v- Barrett EDA1017, the Labour Court set out the three components which must be present for a successful claim of victimisation under Section 74(2) of the Acts as follows: “(1) The Complainant had taken an action of a type referred to at Section 74(2) of the Acts; (2) The Complainant was subjected to adverse treatment by the Respondent, and; (3) The adverse treatment was in reaction to the protected action having been taken by the Complainant.”  Aside from my finding that the Respondent was unaware of the Complainant’s sexual orientation at the material time, no action of a type referred to in Section 74(2) of the Acts was identified by the Complainant to enable the other two conditions to be met.

Decision in relation to Complaint Ref: CA-00055048-001:

Section 79 of the Employment Equality Acts 1998-2015 requires that I make a decision in relation to the complaint.  I have concluded my investigation of this complaint.  I empathise with the Complainant in relation to his personal difficulties at the time as candidly outlined.  However, based upon the aforesaid reasoning, I find pursuant to Section 79(6) of the Acts, that the Complainant has not established in the first instance, facts from which discrimination or harassment on the ground of sexual orientation or ensuing victimisation may be inferred requiring the Respondent to rebut same.  This complaint therefore fails.

Findings and Conclusions in relation to Dispute Ref: CA-00055048-002:

The principles applicable to complaints of constructive dismissal and disputes are similar in that they generally require all internal procedures to have been exhausted before referral to the WRC.  In this respect, I am of the view that even if the Worker felt that he could not approach his Line Manager, Mr B, before resigning, there were numerous opportunities for him to have brought his concerns to Mr A’s attention as Area Manager including during their online conversations in late July /early August 2022, online meeting on 4th August 2022, or via utilisation of the Dignity in Work and Grievance Procedures.  His failure to do so has deprived the Respondent an opportunity to address and remedy his concerns. 

Recommendation in relation to Dispute Ref: CA-00055048-002:

Section 13 of the Industrial Relations Act 1969 requires that I make a recommendation in relation to this dispute.  In circumstances where the Complainant left the Respondent’s employment without availing of its internal procedures, I recommend no concession or further action in relation to this dispute.

Dated:   16th May 2024

Workplace Relations Commission Adjudication Officer:  Aideen Collard

Key Words: Discrimination on the ground of sexual orientation – conditions of employment – harassment – victimisation – Sections 6(1), 6(2)(d), 8, 14A, 74(2) and 85A of the Employment Equality Acts 1998-2015