Complainant

Respondent

Anonymised Parties

Complainant

Respondent

Representatives

Joseph Bradley BL instructed by Ormonde Solicitors

Ibec

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-00062859-002

17/04/2024

The complainant referred to the Workplace Relations Commission claims of discrimination on grounds of race, harassment and victimisation. 

The respondent fully disputed the claims against it and submitted that the complainant had failed to establish a prima facie case.

The complainant is a Spanish speaking, Dominican national with considerable experience as a commis chef.

From almost the outset of the complainant’s employment, the complainant’s line manager displayed discriminatory conduct towards the complainant and others.

In or around the 27 March 2024, the line manager told the complainant and a work colleague that only English was spoken in the respondent organisation.   This was despite the fact several members of kitchen staff had very limited or no English.  The complainant was surprised at the instruction because they were unaware of any of the respondent’s policies which dictated what languages may or may not be spoken in the workplace.  The complainant informed their line manager of this, continued with their work and to converse as needed with their colleague in Spanish.  The line manager called the complainant disrespectful and suggested that the complainant was excluding others.  Following this interaction the manager increased the workload of the complainant and their colleague and began to micromanage the complainant’s work. 

There was targeted aggression, bullying and harassment of the complainant by the line manager and racist comments made.   

Supplemental submissions were received on the Labour Court’s determination in Aer Lingus v Kacmarek & Ors (EDA1712).

Complainant’s evidence

The complainant confirmed commencing employment with the respondent in December 2023 and outlined their experience and role with the respondent as a commis chef.  There were approximately 10 people working in the kitchen with the complainant; 3 were Irish nationals and the remainder included Polish, Romanian, Ukranian and French nationals. 

The complainant described their relationship with the line manager and outlined some particular interactions, including an occasion when the complainant’s Irish colleagues were offered food and another in relation to a photo opportunity.   On 27 March 2024, the line manager told the complainant to only speak English in the kitchen.  The complainant asked to see this policy and where it was written down that only English could be spoken in the kitchen.  The line manager heard French being spoken but never pulled up anyone for speaking French.  The line manager had a real problem with the complainant and therefore picked up on the complainant speaking Spanish. 

From in or around 11 April, the line manager was on top of the complainant more than usual and picking excessively on everything the complainant did.  The complainant described the effects of the treatment on them.

The complainant believed that their employment was terminated because the line manager had a problem with the complainant’s attitude, notwithstanding the complainant’s professional conduct.

Under cross-examination, the complainant said the line manager did not raise issues about work standards but rather with the complainant’s behaviour.  The complainant was not told that the probationary reviews or termination of employment were because of race or grievances raised.

Former colleague’s evidence

This witness gave evidence of two occasions when he saw the complainant crying and told the complainant they had to do something because they were getting too much work.  The witness heard the line manager talking to the complainant in a very unfair manner.

The claims of discrimination, harassment and victimisation are without merit and must fail.

The complainant has failed to elect a comparator and has failed to demonstrate less favourable treatment and how any actions taken by the respondent are related to their race.  The complainant fails to establish a prima facie case of discrimination.

The respondent informed the complainant that the working language in the kitchen is English.  This is not a written rule but a practice that has been in operation in the kitchen for several years.  The respondent is an equal opportunities employer with many different races and nationalities employed and working together.  The complainant grossly misinterpreted the direction to speak in English in the kitchen. 

The complainant fails to establish a prima facie case of harassment.  The complainant referred complaints to HR and the respondent investigated the complaints.  The respondent proceeded with its investigation when the complainant said they wanted a conclusion to the process after employment had terminated.  The respondent took such steps as were reasonably practicable to prevent any harassment. 

The respondent terminated the complainant’s employment during the probationary period due to the complainant’s failure to meet required performance standards.

The respondent rejects the claims against it in their entirety.

Supplemental submissions were received on the Labour Court’s determination in Aer Lingus v Kacmarek & Ors (EDA1712).

HR Business Partner’s evidence

The witness received the complainant’s grievances and appointed a manager to investigate them.  The witness did not inform the line manager of the grievances as there were issues with notes and the witness wanted to get clarity on the grievances against the line manager before putting them to the line manager.  The witness prepared written communications for the investigating manager in relation to the investigation outcome.  The outcome included a recommendation that the respondent review its policies relating to language use in the workplace to ensure fairness and consistency.  The respondent has not yet put in place a new policy.  The witness explained the relevant considerations in developing a written language policy and how the debate is around whether there should be a written policy.

Under cross-examination, the witness maintained that it had an incomplete account and needed clarity on the complaints before putting them to the line manager.  The witness did not check in on the process once he had arranged a manager to look at the grievances.

In response to my questions, the witness advised the respondent does not actively pursue a policy for English to be spoken in the workplace.

Investigating manager’s evidence

This witness was appointed to investigate the complainant’s grievances and met with the complainant in this context.  One of the grievances was not being allowed speak Spanish in the workplace; the complainant felt this was unfair because other people were speaking their own language in the workplace.  The witness did not inform the line manager of the grievances lodged against them. 

Under cross-examination, the witness confirmed that she is a group general manager.  HR had sent the grievances to the witness for investigation, so they were already aware of the issues.  The witness did not liaise with HR after her meeting with the complainant.  In or around 15/16 April, the witness became aware of the termination of the complainant’s employment.  The witness did not know the background to the termination.

Line manager’s evidence

The witness outlined their role and service with the respondent.  The witness was the complainant’s line manager at the time material to these claims and hired the complainant.  The witness outlined the training provided to the complainant on joining and how standards were addressed with the complainant during the probationary period.  The witness’ role involved constantly observing the kitchen to make sure things were being done correctly.  Conversations around work standards and ways of work were ongoing and not confined to probationary review meetings.  The complainant did not like the witness correcting them either publicly or privately.   The complainant did not agree with the witness, and the witness referred to the respondent’s standard operating procedures in response.  There was an unspoken rule that English be spoken.  This was for health and safety reasons.  Work in the kitchen involves working in a hazardous zone with hot oil, noise and ovens so the witness did ask that English be spoken in the kitchen in relation to work-related matters for safety reasons.  Everyone in the kitchen spoke English bar one employee who had no English.  At the final probationary meeting, the complainant had an opportunity to comment on the concerns raised.  The witness was not aware of the complainant’s grievance against them at the time they took the decision to terminate the complainant’s employment.  The witness disputed the complainant’s claims of treating Irish nationals more favourably and of making racially motivated comments.

Under cross-examination, the witness advised that the respondent operates a teaching kitchen with training happening on the job. The witness accepted that there were some improvements in the complainant’s performance at the time of the second probationary meeting.  The witness did not develop a toolkit for the complainant’s dismissal.  The witness was regularly communicating their concerns about the complainant to their general manager.  HR requested the witness detail the concerns and issues.  The English-speaking policy was a custom in the kitchen and an unwritten rule.  Several different nationalities with different languages work in the kitchen and when the witness joined the kitchen, their former executive chef asked for English to be spoken.  On 27 March, the witness made the complainant aware of the rule to speak English in the kitchen work area.  Where there are others working in the kitchen and everyone speaks English, bar one, it is in the interests of inclusivity.  The witness disputed calling the complainant lazy and disputed involvement in a campaign of racially discriminatory treatment of people working for the respondent.  The witness maintained they had no issue with the complainant and that they were completely unaware of the fact that the complainant had referred grievances against them.  The complainant’s performance in the kitchen was the sole reason for the witness’ decision to terminate the complainant’s employment.  It was the witness’ job to monitor performance. 

Background

The complainant is a Dominican national whose first language is Spanish.  They worked with the respondent as a commis chef from 9 December 2023 until 16 April 2024.

The period of employment was the subject of a contractual probationary period.  Issues arose for both parties to the employment relationship during the probationary period, with the complainant referring grievances to HR in or around March 2024 and the respondent raising concerns with the complainant about work standards and absenteeism, including at probationary review meetings in February and March 2024.  The respondent ultimately terminated the complainant’s employment on 16 April 2024 on the grounds of unsatisfactory performance.

The within claims for adjudication, referred on 17 April 2024, are of race discrimination, harassment and victimisation.

The Legal Framework

The Employment Equality Acts 1998-2015 (the “Acts”) prohibit discrimination in employment-related areas on any of the protected grounds. 

Section 6(1) of the 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) (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,”

The race ground is specified in section 6(2)(h) of the Acts as meaning that between any two persons “they are of different race, colour, nationality or ethnic or national origins”. 

Section 14A(7) defines harassment in relevant part as:

“… any form of unwanted conduct related to any of the discriminatory grounds,

…

(b) 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.

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.”

Harassment constitutes discrimination in relation to an employee’s conditions of employment.  Section 14A(2) provides specific defences for an employer in harassment cases.

Section 74(2) of the Acts provides the following in relation to victimisation:-

“… 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 any 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)    the 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 or 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 of the Acts addresses the burden of proof in claims under the Acts.  In the first instance a complainant must establish facts from which discrimination may be inferred; thereafter the burden of proof passes to the respondent to rebut the presumption of discrimination.  Section 85A states 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."

In relation to the establishment of facts, I refer to the following extract from the Labour Court’s determination in Melbury Developments Ltd v Valpeters [2010] 21 ELR 64:-

“All that is required is that they be of sufficient significant 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.”

Findings

Discrimination on grounds of race

The complainant took issue with the way the line manager spoke to the complainant and matters addressed by the line manager with the complainant.  The complainant’s evidence was of what they perceived as insensitive comments, harsh direction and supervision.  The issues between the complainant and their line manager arose from the line manager’s management of the complainant and, in my view, were attributable to the complainant disagreeing with the line manager’s management style.  The complainant’s evidence was that they believed the line manager had a problem with the complainant’s attitude.  The complainant expressed their opinion in direct evidence that the line manager could be a little bit racist.  I find that the complainant has made assertions that are not borne out on the evidence.  The complainant’s evidence of Irish nationals being treated more favourably by the line manager was disputed by the line manager and not corroborated by the evidence of the complainant’s former colleague.   The former colleague’s evidence was of the line manager addressing people in the kitchen in an unsatisfactory manner. 

In or around 27 March 2024, the complainant was asked not to speak Spanish with a colleague in the kitchen.  The respondent’s uncontested evidence was of different nationalities working in the kitchen.  The kitchen work environment can reasonably be understood to be busy with various demands and hazards.  The respondent did not have a written policy on a mandatory workplace language rather it was customary or a practice that employees converse in English in the kitchen.   

It was submitted that the complainant was disciplined for not speaking English.  The evidence before me was that the complainant was asked by their line manager to speak in English in the workplace.  This was at a time when there were others working alongside the complainant in the kitchen.  Whilst the complainant’s first language is not English, it was apparent that they have a sound command of the English language.  

I find that the practice in the respondent organisation requiring staff to speak English in the kitchen is objectively justified on grounds of inclusivity in a workplace where multiple different nationalities are employed.  There was no evidence of operation by the respondent of this practice in an unreasonable or disproportionate manner.  On the occasion when the complainant was asked to speak English, they were in the kitchen in the presence of other workers.  The complainant did not in fact observe the request and there was no sanction imposed.

Having considered the totality of the evidence adduced in respect of this claim, I do not find that the respondent discriminated against the complainant on grounds of race contrary to the Acts.

Harassment

I am not satisfied that the complainant has established a prima facie case of harassment on the race ground.  The complainant took issue with their line manager’s conduct, and considered same to be unacceptable, humiliating and/or offensive, however the evidence does not support any conduct on the part of the line manager related to the race ground.  

Victimisation

There are three components which must be present to make out a claim of victimisation under the Acts:-

              i.            the complainant must have undertaken a protected act of a type referred to at paragraphs (a)-(g) of section 74(2),

            ii.             the complainant must have been subjected to adverse treatment by its employer, and

          iii.            the adverse treatment must be in reaction to the protected act having been taken by the complainant.

I am not satisfied, on the evidence before me, of the complainant having undertaken a protected act within the meaning of section 74(2) of the Acts.  In this regard, I have given particular and careful consideration to the complaints referred by the complainant to HR in or around March 2024 and the complainant’s interaction with the line manager in March 2024 when the complainant was told to speak in English in the kitchen.  With regards the latter instruction, I am not satisfied the instruction was discriminatory for the reasons set out above and, as such, the complainant did not oppose an act which was unlawful as per section 74(2)(f) of the Acts.  In relation to the complainant’s complaints to HR, the subject matter of the complainant’s email was ‘poor management’.  Included in the body of the email was a heading ‘harassment/inappropriate behaviour’.  The email was detailed in the specifics of the complainant’s complaints.  On review, the complaints are not of discrimination or of other prohibited conduct or acts under the Acts.  The complaints referred to HR concerned the line manager’s behaviour, conduct, comments but were not complaints of discrimination, within the meaning of the Acts.  The email set out how the complainant disagreed with how the line manager managed not only the complainant but also other workers. 

Conclusions

I do not find that there was discrimination of the complainant on grounds of race within the meaning of section 6 and in contravention of sections 8 or 14A of the Acts.  I further find that there was no victimisation of the complainant contrary to section 74(2) of the Acts.  

For the reasons set out above, my decision is that the complainant was not discriminated against or victimised contrary to the Acts and that the claims referred to the Commission are not well-founded.  

Discrimination – Harassment – Race – Victimisation – Prima facie case