Complainant

Respondent

Anonymised Parties

A Supervisor

A Coffee Company

Representatives

Emily Maverley IBEC

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00067042-001

30/10/2024

The complainant submits that he was discriminated against by the within respondent on grounds of gender contrary to the Employment Equality act 1998 to 2015 in respect of the way he was treated following a complaint being lodged against him by a female colleague Ms. B with whom he had a past personal relationship.

The complainant also alleges that he was victimised by the respondent

The claims were submitted on 30th of October 2024.

The complainant submits that he was discriminated against by the respondent on grounds of gender contrary to the Employment Equality act 1998 to 2015 in respect of the way he was treated following a complaint being lodged against him by a female colleague with whom he had a past personal relationship.  The complainant was submitted on 29 September 2024 and contained allegations of breaches of the Respondent’s dignity at work policy.

The complainant also submits that he was subjected to victimisation by the respondent.

The Complainant commenced employment with the Respondent company on 30 March 2022 and was initially engaged as a Barista, before he was promoted to Supervisor on 23 September 2022. The Complainant continues to be employed by the Respondent.

The Respondent refutes these claims in their entirety and submits that these claims are unfounded and manifestly untrue. It is the Respondent’s contention that the Complainant was not discriminated against, nor was he the subject of victimisation. Upon receiving a grievance relating to the Complainant involving alleged breaches of their dignity at work policy, the Respondent investigated these matters in full and in accordance with their policies and ultimately issued an appropriate disciplinary sanction. The Complainant was at no point treated less favourably than any female colleague employed by the Respondent.

The issues for decision by me now are whether or not the complainant was discriminated against by the respondent on grounds of gender in terms of section 6 and contrary to section 8 of the Employment Equality Acts, 1998 to and whether he was victimised by the respondent contrary to section 74(2).

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 at the Hearing.

Section 6(1) of the Employment Equality Acts, 1998 to 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 gender.

Thus, the complainant must be the subject of less favourable treatment in comparison to another person on grounds of  gender.

In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to Section 85A of the Acts.

Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination.   It requires the complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination. If she succeeds in doing so, then, and only then, is it for the respondent to prove the contrary.   The Labour Court elaborated on the interpretation of section 85A in Melbury v. Valpeters EDA/0917 where it stated that 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”.

Discrimination

The complainant submits that he was discriminated against by the respondent on grounds of gender contrary to the employment equality act 1998 to 2015. The complainant also submit that he was subjected to victimisation by the respondent. The complainant advised the hearing that a colleague of is Ms B with whom he had a past personal relationship,  lodged  a complaint against him on 29 September 2024, which contained allegations of breaches of the Respondent’s dignity at work policy.   The complainant submits that following this he was suspended with pay while the investigation was carried out and the outcome was a verbal warning, a move to another store and having his bonus cut.   The complainant advised the hearing that even though the outcome of the investigation was based on the balance of  'probability' which he submits is that it may or may not have happened, but yet he was still  sanctioned.

The complainant advised the hearing that during the disciplinary meeting  when the decision was made to give him a verbal warning only, there was no mention of a bonus cut.  The complainant stated that the whole situation had a huge impact on his mental health.  The complainant told the hearing that his employer had stated that both he and the complainant, Ms. B had been moved from the store to other locations, yet the complainant advised the hearing that he was the only one to be moved.

The complainant advised the hearing that he had previously been involved in a relationship with Ms B, but that the relationship had ended and they had continued to work together for the past year without any issue until he had returned from a holiday abroad after his wedding.    The complainant advised the hearing that after his wedding Ms. B seemed to be annoyed by the fact that he had returned with a ring on his finger despite the fact that her relationship with him had been over for some time.   The complainant advised the hearing that following a complaint lodged by Ms B against him he was suspended with Pay.

The complainant advised the hearing that he was later moved to another store away from the location in which he had worked with Ms B.    The complainant submits that  that he was also demoted as a result of the complaint lodged Ms. B and he advised the hearing that he was also notified following the investigation that he would not be receiving his bonus.

The complainant stated that after he returned to work he was sent to a different  location in Store B and when he arrived there he discovered  that he was no longer working as a supervisor and was told that the position he was there to fill   was that of a barista.   The complainant stated that this was a demotion and following this complaint and his doctor the next day and was certified off sick from work due to mental health issues.   The complainant submits that this amount to less favourable treatment on grounds of his gender as he submits that Ms B was allowed to remain in Location A where they had both worked even though he had been there longer than Ms B.

The respondent advised the hearing that a complainant was lodged by Ms. B against the complainant under the  Company's Dignity at Work policy, the Complainant was notified of this complaint and placed on a period of paid suspension, in accordance with the Respondent’s disciplinary policy, whilst the investigation was carried out. This period of paid suspension commenced on 02 October 2024,

 The respondent advised the hearing that there  was an investigation into the matter  and the investigator concluded on the’ balance of probabilities’ that the complainant had engaged in intimidating behaviour towards his colleague Ms,. B which was a breach of the Company's Dignity at Work policy, and as a result of which the complainant was issued with the sanction of a verbal warning to remain on his file for a period of 5 months.   The respondent advised the hearing that the disciplinary officer Mr. M  outlined that the complainant  could return to work immediately, but that he would be transferred to a  store in a different district from Monday 21st of  October 2024. Also, in accordance with the Company's bonus scheme rules, the complainants Quarter 3,2024 bonus was  forfeited due to his failure to uphold the expected work standards as bonus eligibility is determined at the sole discretion of management.

The respondent advised the hearing that  Ms B was also involved in an entirely separate investigation process, pertaining to a separate matter, following which she  also received a disciplinary sanction.   Despite the Complainants assertion otherwise, Ms. B  was also moved to an alternative location at a later date due to the fact that this move necessitated a replacement, and that employee was on a period of leave.    The date of this move was 04 November 2024.   The Respondent contends that this could not amount to less favourable treatment, as the Complainant was not treated less favourably than any other female colleague within the Company.

The respondent stated that following the investigation outcome a decision was taken to move the complainant to another location.  The respondent advised the hearing that the Complainant was advised of his right to appeal that decision and instructions on how to do so, however he chose not to.

The respondent stated that the  Complainant commenced work in the alternative store on 21 October 2024, however on 29 October 2024 he confirmed that he was not medically fit to work. The Complainant has remained on a period of long-term medically certified sick leave since.

The complainant advised the hearing that he was not aware that his bonus was to be stopped as he had not been told this at the disciplinary hearing where he had been told that he was to receive a sanction of a verbal warning  

Mr.  M  who carried out the disciplinary  advised the hearing that this was  correct and that he had not advised the complaint at the time of the disciplinary meeting that his bonus was to be withheld and that this was notified to the complainant in writing following the meeting.   Mr. M stated at the complainant had made a very clear at the disciplinary meeting that he was anxious to get back to work and so Mr. M had assured  him that he would return him to work as soon as possible.

 Mr. M stated that he had not at that point decided on what additional sanction was to be applied but that he had decided that the complainant was to be permitted to return to work albeit  in a different location to Ms B.

When  considering the evidence adduced by the Complainant I must  take into consideration the Respondent’s contrary evidence, when determining whether the burden of proof should shift to the respondent.   In the Labour Court case of Dyflin Publications Limited v Spasic EDA0823, it was stated that:-

“….the Court should consider the primary facts which are relied upon by the complainant in their proper context. It also indicates that in considering if the burden of proof shifts the court should consider any evidence adduced by the respondent to show that, when viewed in their proper context, the facts relied upon do not support the inference contended for by the complainant.”

In  Graham Anthony & Company Limited v Mary Margetts  EDA 038  the evidential burden which must be discharged by the Complainant before a prima facie case of discrimination can be said to have been established was further outlined by the Labour Court when it stated:

“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 occurred.”

Having considered the evidence from both sides in this matter in line with Dyflin Publications Limited, I conclude that the Complainant has made mere assertions without providing the primary facts to show that either gender was a  determining factor in his treatment by the respondent.

 I am thus satisfied from my examination of the totality of the evidence adduced that the complainant was not discriminated against by the respondent on grounds gender.

Victimisation

Section 74(2) of the Acts provides:

 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 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.

The key elements of victimisation provided for in section 74(2) of the Acts can be summarised as follows:

·       The employee had taken action of a type referred to at section 74(2) of the Acts

·       The employee was subjected to adverse treatment by the Respondent, and

·       The adverse treatment was in reaction to the protected action having been taken by the employee.

·       There must be a causal connection between the taking of proceedings and any alleged treatment by the employer.

In order for a Complainant to succeed in a victimisation claim they must prove that they experienced adverse treatment by the Respondent and that the adverse treatment was solely or mainly because he partook in any of the above actions listed a-g.

The Complainant in the present case failed to demonstrate that he committed a protected act as prescribed under section 74 (2) or that he has suffered adverse treatment as a result of any such protected act.

 Accordingly, I am satisfied that the  complainant has failed to establish that he was victimised by the respondent as per the definition of victimisation within the Employment Equality act.

I am satisfied from the totality of the evidence adduced that this does not amount to victimisation of the complainant by the respondent contrary to section 74(2) of the EEA.

I am satisfied from the totality of the evidence adduced in respect of these matter that the complainant was not discriminated against by the within respondent in accordance with Section 6 and contrary to Section 8 of the Employment Equality Acts 1998-2015 and that he was not victimised by the respondent contrary to Section 74 (2) of those Acts.