The Equality Tribunal
Employment Equality Acts
(Represented by Richard Grogan & Associates)
- V -
File references: EE/2012/525
Date of issue: 25 September 2013
Keywords - Employment Equality Acts - Discriminatory Treatment - Discriminatory Dismissal - Race - Prima Facie case
1.1 This dispute concerns a claim by the complainant that he was subjected to discriminatory treatment and discriminatory dismissal by the respondent on the grounds of their race in terms of Section 6(2) of the Employment Equality Acts and contrary to Section 8 of those Acts.
1.2 The complainant referred claims of discrimination to the Director of the Equality Tribunal on 10 October 2012 respectively under the Employment Equality Acts. On 27 August 2013, in accordance with his powers under section 75 of the Acts, the Director then delegated the cases to Conor Stokes - 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 sought and received from the parties. As required by Section 79(1) and as part of my investigation, I proceeded to hearing on 13 September 2013. All written and oral evidence presented to the Tribunal has been taken into consideration when coming to this decision.
1.3 The complainant withdrew the discriminatory dismissal element of the complaint prior to the oral hearing.
2. SUMMARY OF THE COMPLAINANT'S CASE
2.1 The complainant submitted that he was subjected to racial abuse by his supervisor, Mr X, who told him that he was 'shit' and that he came from a 'shit' country and that his family was 'shit'. The complainant is a Latvian national and it is on this basis that he is taking this complaint. The complainant submitted that Mr X is an Indian national.
2.2 The complainant submitted that he did react. He had a metal tray and threw it on a table and it fell onto the floor. The complainant went to pick up the tray and in the process pushed Mr X out of the way.
2.3 The complainant is contending that the treatment of him is discriminatory
3. SUMMARY OF THE RESPONDENT'S CASE
3.1 The respondent submitted that the complainant was employed as a member of its restaurant crew until 15 September 2012
3.2 On 9 September, 2012, an incident took place between the complainant and his supervisor, Mr X. The incident was reported to the respondent by Mr X.
3.3 The respondent undertook an investigation into the incident, including taking witness statements from the parties and other employees who were present on the night. The result of this investigation was that both parties were disciplined in accordance with the disciplinary process set down in the respondent's employee handbook
4. FINDINGS AND CONCLUSIONS OF THE EQUALITY OFFICER
4.1 The issue for decision by me is whether or not the respondent subjected the complainant to discriminatory treatment on the ground of race, in terms of Section 6 of the Employment Equality Acts, and contrary to Section 8 of those Acts.
4.2 Section 85A of the Employment Equality Acts sets out the burden of proof which applies to claims of discrimination. It requires the complainant to establish, in the first instance, facts from which discrimination may be inferred. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised.
4.3 The respondent submitted the notes of its investigation into the matter to hand in advance of the hearing. The altercation between the complainant and Mr X centred around the complainant taking a smoking break without clocking out as all staff are expected to do. When Mr X tackled the complainant about this, an argument ensued where both parties appear to have traded insults, including comments made by the complainant about Mr X's wife. This is confirmed by the witness statements and was not contradicted by the oral evidence provided at the hearing. In his written account of the altercation, Mr X admitted losing control and becoming very emotional following the comments of the complainant.
4.4 Ultimately, the complainant took violent action against Mr X and was dismissed. Both parties to the altercation were disciplined, Mr X having been given a final written warning (one step short of dismissal in the respondent's disciplinary process).
4.5 When considering the oral evidence of a witnesses, I am particularly mindful of the credibility or otherwise of the individual in terms of their demeanour while testifying; their level of recollection of various incidents/facts; the existence or non-existence of bias, interest or other motive; the consistency of their evidence - within their own accounts and when the accounts are compared to the documentary evidence to hand or with another witness; and the plausibility of their accounts. I also take into account any issues raised by cross-examination by various representatives or in response to my own questions.
4.6 Mr X was not in attendance at the hearing. The complainant gave evidence at the hearing. However, he was not able to recount specifics but spoke in general terms, even when responding to specific queries from the Equality Officer. His answers were vague and when specifically asked whether he used abusive language, he ultimately stated that he did not. This version contradicts the accounts given in writing by five of his colleagues. I am not satisfied that the complainant was an entirely innocent party in all of this.
4.7 However, I note that the complainant's version of what was said to him was not challenged and on the basis of this I believe that he has established facts from which discriminatory treatment may be inferred. Accordingly, the onus shifts onto the respondent to rebut this inference.
4.8 In its turn, the respondent pointed out that this appears to stem from a personal matter, as the complainant and Mr X shared a house at one point. There appears to have been a difference of opinion as to one of the utility bills. This respondent only became aware of this history after the fact. In addition, it is unclear who started trading the insults on the night of the altercation. Furthermore, the respondent submitted that in its handbook it outlines policies against discrimination, and has a grievance procedure which the complainant did not avail of. Finally the respondent submitted that it has a disciplinary procedure which was followed in this case both in relation to the complainant and to Mr X.
4.9 The respondent submitted that it could not have done anything to foresee or prevent this interaction between two of its employees, however, by following the disciplinary code it has taken such steps as are reasonably practical to prevent an employee (i.e. Mr X) from doing or repeating such behaviour again.
4.10 Section 15 of the Acts states that
Anything done by a person in the course of his or her employment shall, in any proceedings brought under this Act, be treated for the purposes of this Act as done also by that person's employer, whether or not it was done with the employer's knowledge or approval.
(2) Anything done by a person as agent for another person, with the authority (whether express or implied and whether precedent or subsequent) of that other person shall, in any proceedings brought under this Act, be treated for the purposes of this Act as done also by that other person.
(3) In proceedings brought under this Act against an employer in respect of an act alleged to have been done by an employee of the employer, it shall be a defence for the employer to prove that the employer took such steps as were reasonably practicable to prevent the employee --
(a) from doing that act, or
(b) from doing in the course of his or her employment acts of that description.
4.11 In all the circumstances of this case, I am satisfied that the respondent has established that it may rely on the defence contained in Section 15(3) of the Acts and accordingly the complainant is not entitled to succeed with his complaint.
5.1 Having considered all the written and oral evidence presented to me, I find that a prima facie case of discriminatory treatment on the basis of the race ground has been established but that the respondent is entitled to rely on the defence contained in Section 15(3) of the acts. Accordingly this complaint must fail.
25 September 2013