The Equality Tribunal
EMPLOYMENT EQUALITY ACTS 1998 - 2008
DECISION NO. DEC-E2010-153
A Kitchen Worker
File reference: EE/2008/055
Date of issue: 17 August 2010
HEADNOTES: Employment Equality Acts, 1998-2008, Sections 6 and 8 - Gender, Marital Status, Family Status, Sexual Orientation - Conditions of Employment - Harassment - Sexual Harassment
1.1 This dispute concerns a claim by a kitchen worker that he was discriminated against in relation to conditions of employment in terms of section 8(1)(b) of the Employment Equality Acts and that he was harassed and sexually harassed in terms of section 14A of the Acts by a restaurant on the grounds of gender, marital status, family status and sexual orientation contrary to section 6(2) of the Acts.
1.2 The complainant referred his claim to the Director of the Equality Tribunal on 31 January 2008 under the Employment Equality Acts. On 25 November 2009, in accordance with her powers under section 75 of the Acts, the Director delegated the case to me, Hugh Lonsdale, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts, on which date my investigation commenced. Submissions were received from both sides. In accordance with Section 79(3A) of the Acts and as part of my investigation I proceeded to a hearing on 15 June 2010.
2. SUMMARY OF THE COMPLAINANT'S CASE
2.1 The complainant submits that he started work for the respondent in 2000 as a kitchen porter and he left in 2006 because he claims he was bullied by a chef but was convinced to go back by the owner when she promised there would be no more bullying.
2.2 He submits that his job was to wash dishes and kitchen appliances and he worked from 5pm until 11.30pm. Then he was told to prepare vegetables which he was not getting paid to do. Also he was phoned at home from time to time to come into work immediately to help out with the vegetables. He felt obliged to go in regardless of his own situation.
2.3 He submits that two chefs, when there was no manager in the kitchen, would say he was too slow for the vegetables and they would shout at him, call him a homosexual and call him "Mary". He submits that he was constantly bullied by them, insulted, shouted at and laughed at, and this included references to his sexuality. He submits that the management and owner knew it was going on but they did nothing.
2.4 The complainant submitted a number of instances of alleged harassment. In June 2007 one of the chefs called him "gay boy". On another occasion he bought his own birthday cake; the chefs said they would pay for it but they never did. Later that night he went for a drink after work with some colleagues, however the two chefs were in the same bar but did not join him. Two weeks before leaving the respondent's employment, on his return from holiday he gave the chefs a bottle of vodka, it was not a gift as they had asked him to get it but they did not pay him for it and they did not thank him for it. He hoped that when he gave them the vodka the chefs would stop bullying him. He found it very difficult to work there and he had to leave.
2.5 The complainant submits that on his last day of work, 11 September 2007, he was sweeping the floor when one of the chefs, who was talking to a representative from a food supplier, shouted and swore at him. He asked the chef not to shout and swear at him in front of others but he shouted and swore at him again telling him that he should do whatever he told him to do. He submits that was all he could take and he walked out because of the bullying.
3. SUMMARY OF THE RESPONDENT'S CASE
3.1 The respondent denies that any discriminatory treatment took place. When the complainant started working for them the then chef was aware that he had walked out of two jobs because of disagreements with chefs and was very specific that his duties included washing up, cleaning and assisting with vegetable preparation. They submit that the complainant never raised an objection to his duties whilst he was working for them. He was on occasions asked to come in early but this was always done politely. The complainant was not required to come in early but he never refused and he seemed happy to do so.
3.2 The respondent submits that one member of the family of the owner was always in the restaurant and none of them witnessed any discrimination. The complainant never reported any bullying and they submit that he had the opportunity as the manager or owner always saw the complainant at the end of the evening before closing. They considered that they had a good relationship with the complainant whilst he was working for them. The respondent submits there was harmless banter in the kitchen which the complainant would join in and they were unaware of any remarks going beyond this.
3.3 The respondent also submits that they would not tolerate the type of discrimination alleged by the complainant. They employ staff of different creeds, beliefs and sexual orientation who happily work for them. The two chefs referred to by the complainant have a brother who is gay. Also a former waitress gave evidence at the hearing that she is gay and she worked very happily in the restaurant, she never heard any discriminatory comments in the restaurant and a gay friend helped out in the restaurant when they were short staffed. Another former waitress gave evidence at the hearing that she is from the Czech Republic and she worked happily in the restaurant for five years, she did not hear any discriminatory comments and had a good working relationship with the chefs referred to by the complainant. Her brother started working in the restaurant when he had very little English and still works there.
3.4 The respondent submits that in 2006 the complainant told the manager that the chefs were spending too much time smoking. The manager spoke to the head chef who was confused as to what the complainant was talking about. She told the complainant she thought he was making it up and he walked out. Some time later, after the chef had left, a vacancy for a kitchen porter arose and the owner of the restaurant asked the complainant if he wanted to come back. As they were unaware of any bullying no promises could have been given.
3.5 The respondent submits that in August 2007 the complainant returned from holiday and gave the chefs a bottle of vodka, they did not ask for it. In relation to the complainant's birthday the respondent submits the chefs gave the complainant money to buy the birthday cake and that evening after work they did go for a drink with the complainant and bought him a drink. Also, every night the complainant worked one of the chefs would cook the complainant a meal and on busy nights he would ask the manager or owner to send in floor staff to help complainant finish up.
3.6 The respondent submits that on his last day of work the complainant was asked to wash a bottle by one chef and there was a disagreement between them as to whether this had been done satisfactorily. The other chef was talking to a representative from a food supplier and told them both to "shut up". The complainant took offence and told this chef not to talk to him that way and walked out.
4. FINDINGS & CONCLUSIONS OF THE EQUALITY OFFICER
4.1 I have to decide if the complainant suffered discriminatory treatment on the grounds of his gender, marital status, family status and sexual orientation in relation to his conditions of employment and if he was subject to harassment and sexual harassment. In reaching my decision I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence presented at the hearing.
4.2 Section 85A (1) of the Employment Equality Acts, 1998 - 2007 states: "Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary." This means that the complainant must establish primary facts upon which the claim of discrimination is grounded and then the burden of proof passes to the respondent. Section 6(1) of the Employment Equality Acts, 1998 and 2004 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).....". In this claim the grounds are gender, marital status, family status and sexual orientation but, as held by the Labour Court in Anthony v Margetts¹: "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." The complainant adduced no evidence in relation to gender, marital status or family status so I find that he failed to establish a prima facie case of discrimination in relation to these grounds. I will therefore consider his claim in relation sexual orientation.
4.3 The complainant alleges that the incident when he walked out in 2006 amounts to bullying but from the evidence presented by both sides I conclude that it was a one-off incident that at worst was a disagreement between two colleagues and there is no inference that it is related to any of the specified grounds in the Acts.
4.4 His claim that he was discriminated against in relation to his conditions of employment relates to evidence adduced that he considers vegetable preparation to be extra duties and he contends that he was on occasions forced to come in early. However, I accept the respondent's evidence that vegetable preparation was part of his duties, although he was not asked to carry it out on a regular basis. Also I accept the respondent's evidence that he could have declined to come in early. I therefore find that the complainant has failed to establish a prima facie of discrimination in relation to his conditions of employment.
4.5 In direct evidence at the hearing the complainant did in vague terms refer to comments being made nearly every day but, despite being given every opportunity, he was unable to remember any incident that might be considered to amount to harassment or sexual harassment on the grounds of his sexual orientation other than the accusation he was called "gay boy" on one occasion. This accusation was vehemently denied at the hearing by the chef who was accused of making the comment. Also another chef who the complainant alleges was present did not start working for the respondent until August 2007. The complainant stated at the hearing that he was not gay but the comments could impute a sexual orientation. The comment "gay boy" would, if said, establish a prima facie case of harassment, however on the basis of all the evidence put forward I find the evidence given by the respondent and their witnesses to be more credible and I am not convinced that the comment was made.
4.6 The manager of the restaurant gave evidence at the hearing that on occasions she used the name "Mary" as a term of endearment which she would use for everybody working in the restaurant. No one else used the term.
4.7 The complainant also gave evidence at the hearing about the bottle of vodka and the birthday incidents with the cake and going for a drink but he could not refute the respondent's rebuttal. Also three staff members who were working for the respondent at that time gave evidence at the hearing that a number of staff, including the two chefs, went for a drink after work on the complainant's birthday.
4.8 In relation to the incident on the complainant's final day of work with the respondent the representative of the food supplier who was present at the incident gave evidence at the hearing that he heard loud voices from within the kitchen and when his mobile phone rang the chef he was dealing with asked both the complainant and another chef to keep quiet. The witness testified that the complainant said something like "I'm out of here" and left.
4.9 The complainant was given every opportunity to substantiate his claim at the hearing but he was very reluctant to give direct evidence, even after extensive questioning. I found his evidence to be very vague and inconsistent in relation to the specific incidents he referred to. The respondent has given contradictory evidence in relation to these incidents and when given the opportunity to respond to the respondent's evidence the complainant was unable to refute their version of events. On balance I find their evidence more credible. I therefore find that the complainant has failed to establish a prima facie case of harassment or sexual harassment.
I have investigated the above complainant and make the following decision in accordance with section 79 of the Acts that the respondent:
- did not discriminate against the complainant in relation to his conditions of employment
- did not harass or sexually harass the complainant in relation to gender, marital status, family status and sexual orientation.
17 August 2010
¹ Graham Anthony & Co v Mary Margetts, Labour Court ADE/03/1 - Det No. EDA038