The Equality Tribunal
3 Clonmel Street
Phone: 353 -1- 4774100
Fax: 353-1- 4774141
Employment Equality Acts 2000 to 2008
EQUALITY OFFICER'S DECISION
NO: DEC-E2011- 183
(Represented by MS Niamh McHugh, B.L. on the instructions of D'Arcy & Co Solicitors)
Noxtad Limited t/a Carlton Abbey Hotel
File No. EE/2010/424
Date of Issue: September 2011
File reference: EE/2010/424 - DEC-E2011-183
Employment Equality Acts -Discriminatory treatment - Conditions of employment - Training- Harassment- Race - Prima Facie Case
1.1 This case concerns a claim by Ms. Simona Stoian, a Romanian national, (hereafter "the complainant") that she was subjected to discriminatory treatment by Noxtad Limited, in liquidation (hereafter "the respondent") on the grounds of her race contrary to section 6(2)(h) of the Employment Equality Acts, 1998 to 2008. The complainant maintains that the respondent discriminated against her in terms of conditions of employment, training, harassment and in relation to discriminatory dismissal.
1.2 The complainant referred a claim of discrimination to the Director of the Equality Tribunal on 28 May 2010 under the Employment Equality Acts. On 23 August 2011, in accordance with his powers under section 75 of the Acts, the Director then delegated the case to Fiona Lafferty- 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. This is the date I commenced my investigation. A written submission was received from the complainant on 18 November 2010. No submission was received from the respondent. By letter dated 22 July 2011 the respondent's representative advised the Tribunal that the respondent had gone into liquidation and furnished details of the Liquidator appointed. In accordance with the normal procedures in the Tribunal the Liquidator was notified in writing by recorded delivery where and when the hearing of the complaint would take place. No submission was received from the respondent, and no representative for the respondent, or the respondent's Liquidator, attended the hearing of the complaint on 31 August 2011.
2. Summary of Complainant's Case
2.1. Discriminatory treatment
The complainant, a Romanian national, worked with the respondent as a Hotel Receptionist between 21 August 2008 and 19 May 2010. She claims that she was discriminated in terms of her conditions of employment in that her hours of work were reduced in favour of her Irish colleagues and that she was not provided with statutory break periods. She claims she was requested to work in conditions which were cold unlike her Irish receptionist colleague who she claims was afforded a heater at the reception desk. The complainant contends that she was treated less favourably in terms of access to a sales reservations training course. Ms Stoian further contends that she was subject to harassment by the General Manager at the respondent hotel.
3. Summary of Respondent's Case
3.1 The respondent neither attended the hearing nor was represented at same.
4. Conclusions of Equality Officer
4.1 The complainant's representative withdrew her complaint of discriminatory dismissal at the beginning of the hearing. Therefore, the issue for decision is whether or not the respondent discriminated against the complainant on grounds of race, in terms of section 6(2) of the Employment Equality Acts 1998-2008 as regards conditions of employment, training and 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 evidence presented at the oral Hearing.
4.2 Section 6(1) of the Employment Equality Acts, 1998 -2008 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) of the Acts defines the discriminatory ground of race as follows: "as between any two persons... that are of different race, colour, nationality or ethnic or national origins...". It therefore follows that the complainant must be the subject of less favourable treatment in comparison to another person on grounds of nationality, i.e. because she is Romanian.
4.3 Section 85A of the Employment Equality Acts 1998- 2007 sets out the burden of proof which applies to claims of discrimination. It provides, in effect, that where facts are established by or on behalf of a complainant from which discrimination may be inferred, it shall be for the respondent to prove the absence of discrimination. The test for applying that provision is well settled in a line of Decisions of this Tribunal and the Labour Court and it requires the complainant to prove the primary facts upon which he relies in seeking to raise an inference of discrimination. It is only if this initial burden is discharged and the Equality Officer is satisfied that the facts as established are of sufficient significance to raise a presumption of discrimination, that the burden of proving that there was no infringement of the principle of equal treatment passes to the respondent. If the complainant does not discharge the initial probative burden required of her this case cannot succeed.
4.4 Conditions of employment
The complainant states that she was employed as a full time receptionist and that her hours of work were reduced in favour of her Irish receptionist colleagues and submits that this constitutes less favourable treatment of her on grounds of race contrary to the Acts. In the course of the Hearing the complainant stated that she initially worked between 37 and 40 hours a week on reception duties. She submitted that on 5 January 2009 she received a letter from the General Manager of the respondent hotel which informed her that due to the reduced level of business foreseen for the months of January and February 2009 that it was necessary to place her on a three day working week with immediate effect and that the situation would be reviewed on 1 March 2009. I note that in direct evidence the complainant stated all other receptionist staff were Irish and that they received a similar letter from the respondent placing them on a shorter working week. Consequently, I am not satisfied that an Irish employee was treated differently in the circumstances and her complaint on this aspect fails.
4.5 It was submitted that following the recruitment of two Irish receptionists in December 2009 that the complainant was allotted on average two to three days work a week. The complainant claims that the new Irish receptionists were allocated more hours of work in favour of her. She further claims that in 2010 she made a verbal agreement with the General Manager to facilitate the complaint's attendance at a third level course that she would not be rostered to work Tuesdays, Thursdays and exam days. The complainant claims that General Manager reneged on this agreement and produced documentary evidence in the form of rosters obtained from the respondent in support of these claims.
4.6 From an analysis of the evidence produced and from direct evidence at Hearing I am not satisfied that I was provided with the evidential basis to conclude that an Irish employee would have been treated more favourably in the circumstances. From the evidence I am satisfied that the changes in the complainant's work patterns arose partly to accommodate her own needs, partly out of managerial considerations and partly out of business necessities which ultimately resulted in the liquidation of the company. In light of this, I find that the complainant has failed to establish facts from which it can be inferred that an Irish employee would have been treated more favourably than her in the circumstances and her complaint on this aspect fails. Accordingly, she has failed to establish a prima facie case of discrimination in respect of this element of her claim.
4.7 Other matters raised such as statutory rest breaks and temperature at work are matters for other fora and not this Tribunal.
The complainant contends that she was not afforded the opportunity to attend sales reservations training which was offered to her new Irish colleagues on reception and that this amounts to discrimination on the grounds of race. In considering this issue, I accept the complainant's evidence that she asked to be put on a list for sales training and that she was not selected for such training. However, in considering this issue, I have to take note of the case of Melbury Developments v Arturs Valpetters where the Labour Court, whilst examining the circumstances in which the probative burden of proof operates stated that a complainant "must first establish facts from which discrimination may be inferred". It added that "Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section85A 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 this case it was submitted that the Complainant was treated badly by the Respondent and the Court was invited to infer that he was so treated because of his race. Such an inference could be drawn if there was evidence of some weight from which it could be concluded that persons of a different race or nationality were or would be treated more favourably. All that has been proffered in evidence in support of that contention is a mere assertion unsupported by any evidence". Accordingly, having regard to the reasoning in this case the complainant has not adduced evidence to raise a prima facie case of discrimination on the grounds of race in terms of the manner of selection for training. Therefore, she has failed to establish a prima facie case of discrimination in respect of this element of her claim.
The final element of the complainant's claim that I must consider is the claim that the complainant was subject to harassment by the General Manager of the respondent hotel. The complainant cited a number of instances in support of this claim not related to her race. It was submitted that the complainant was treated badly by the Respondent and the Tribunal was invited to infer that she was so treated because of her race. All the complainant has proffered is an assertion unsupported by any evidence - a scenario which the Labour Court has found to be insufficient to satisfy the initial probative burden required in terms of section 85A of the Acts. In the circumstances I am not satisfied that the complainant has established as a fact that she was treated differently to any other employee because of her race. Accordingly, she has failed to establish a prima facie case of harassment in respect of this element of her claim.
5. Decision of the Equality Officer
I have completed my investigation of these complaints and in accordance with section 79(6) of the Employment Equality Acts, 1998 to 2008 I issue the following decision. I find that the respondent did not discriminate against the complainant on the race ground pursuant to section 6(2)(h) of the Acts, in terms of conditions of employment, training and harassment.
30 September 2011