Complainant

Respondent

Anonymised Parties

A Baker

A Food and Drinks Company

Representatives

Ian Fitzharris B.L. instructed by FX Rowan & Co Solicitors

 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-00033378-001

20/12/2019

The complaint was submitted to the Workplace Relations Commission (WRC) on 20th December 2019 and concerns allegations of discrimination on the grounds of disability, race, victimisation, harassment, conditions of employment and “other” in contravention of the provisions of the Employment Equality Acts, 1998-2015. The cognisable period of the complaint is 21st June 2019 – 20th December 2019.

Note: The hearing of the within complaint has encountered significant delays since it was first scheduled for hearing in February 2020. The matter has been postponed on at least 9 occasions due to the unavailability of representatives on a number of occasions, the objection to a remote adjudication hearing, the Covid 19 pandemic, illness on both sides, and on one occasion an objection from the respondent to the matter proceeding following the complainant’s counsel speaking to the WRC appointed interpreter prior to the commencement of a hearing.

The first hearing of the within complaint took place on 4th November 2021 with the associated complaint (ADJ-00020627) and the matter was concluded at an adjudication hearing on 26th November 2024.

Anonymisation:

This complaint and the associated complaint (ADJ-00020627) contain information of a sensitive nature relating to the complainant which I believe is deserving of privacy. On that basis, I have decided to use my discretion and anonymise both adjudication decisions.

Interpreter

A WRC appointed Polish Interpreter assisted the complainant in respect of his understanding of a comment that he says was made to him on or about 23rd June 2019 which the complainant later discovered to be a particularly derogatory and offensive racial slur.

This complaint partly relates to the alleged discriminatory treatment of the complaint in the workplace on or about 23rd June 2019. The specifics of the allegation are that the complainant was subjected to a racial slur by a colleague who had worked in the complainant’s previous work location and learned from his colleagues about the complaints the complainant had previously made against them. The complainant raised the issue of his treatment with HR and while the respondent attempted to investigate the matter, the alleged perpetrator had resigned on 30th June 2019. The complainant stated that he himself had misunderstood the meaning of the racial slur and that its meaning was not clarified to him until October 2019.

The complainant raises further complaints of the discrimination on the disability ground as he says he is a person with ADHD and Aspergers Syndrome and has been the subject of less favourable treatment by the employer as a result. The complainant also contends to have been harassed, victimised, and discriminated against on his conditions of employment and in “other.”

Counsel for the complainant contends that the complainant has satisfied the burden of proof in relation to establishing facts from which an inference of discrimination can be drawn. Counsel contends that the complainant’s submissions and evidence are compelling in respect of the repeated discriminatory treatment he experienced, the medical impact he suffered and the respondent’s failure to provide any rebuttal evidence and its repeated failure to address, investigate or act in any way in relation to the issues the complainant was continually raising.

Continuum

Counsel contends that a continuum of discrimination applies in relation to this case and the associated case ADJ-00020627. Counsel argued that there was a discriminatory regime in place which allows consideration of the entire period from the referral of the second complaint on 20th December 2019 to the 13th September 2018, which is six months prior to the referral of the first complaint submitted on 12th March 2019.

Evidence

The complainant gave sworn evidence in respect of the within complaint at the adjudication hearing on 26th November 2024. The complainant stated that he worked as a Baker and Head Baker in several of the respondent’s locations since his employment commenced in 2012. In June 2019, a colleague went to another location to provide cover and on his return began to treat the complainant very differently. The complainant stated that it was obvious to him that the colleague had learned about complaints the complainant had made about employees in that location. The complainant stated that he was told he did not know how to do his job and was also subjected to a racial slur. The complainant’s evidence was that his colleague also told him that he was leaving his employment and would behave whatever way he liked toward the complainant. The complainant confirmed that his colleague left the employment on 30th June 2019. The complainant stated that he was made aware in October 2019 that his colleague may be returning to the employment although this never happened. It was around this time that the complainant said that the true meaning of the racial slur was clarified to him. The complainant also stated that in general, he had been treated less favourably since the issue of his disability was first notified by him to the respondent in 2018.

The respondent representative put it to the complainant in cross examination that the respondent was unaware of a formal diagnosis of any disability in 2018, and that it was difficulties with the Head Baker that resulted in his transfer at that time. The respondent confirmed that the complainant’s title changed on transfer to that of Baker, but he remained as a Head Baker in terms of pay. It was put to the complainant that there was no demotion as claimed. It was also put to the complainant that it was December 2021 when the respondent first received medical certificates relating to a disability and prior to this there was no notification of same, formal diagnosis received or any request for the complainant to receive accommodation in the workplace. It was further put to the complainant that despite his claims of racial discrimination, this was not mentioned by him at all in the investigation meeting of 15th July 2019. The respondent concluded by stating that the complainant has not established any less favourable treatment on the grounds of either disability or race and that his complaints of victimisation and harassment are without any foundation whatsoever.

The respondent stated that on 22nd June 2019, the complainant submitted a complaint relating to how he was being treated by his manager in his new work location. On 23rd June 2019, the complainant sent a further email about an interaction he had when his manager returned from working for three days in his previous work location and how his behaviour towards him had changed.

The respondent stated that the complainant was then on certified sick leave and that arranging an investigation meeting was problematic, given that the complainant’s solicitor was querying the qualifications of the investigator and whether the complainant should participate in the process. The respondent stated that the concerns of the complainant’s solicitor were unusual given that it was trying to progress and resolve the issues raised by the complainant. The respondent stated that a meeting was eventually scheduled and took place on 15th July 2019. The respondent stated that further investigation meetings took place between July and September 2019 and none of the complainant’s allegations were upheld. The respondent stated that the complainant sought to appeal the findings of the investigation yet did not respond to two letters seeking his grounds of appeal. The appeal was carried out by the finance director even though the complainant did not furnish details relating to his grounds of appeal. The respondent confirmed that the appeal upheld the investigators findings in relation to the issues raised by the complainant.

The respondent contends that in respect of the complaint submitted to the WRC on 20th December 2019, there are no specifics in relation to disability discrimination, but the issue of the racial slur is included in this complaint as having occurred on 23rd June 2019 although it transpired that its meaning was not understood by the complainant until October 2019. The respondent stated that a thorough and robust investigation process into this issue concluded that there was no evidence of racial discrimination. The respondent’s position is that the statements and interviews taken show that the complainant did not react well when performance issues were raised to him and that his response was to claim that he was being discriminated against and racially abused at work.

The respondent concluded its submission by stating that it had gone to great lengths to be supportive of the complainant across the entire period where he claims to have been discriminated against and racially abused. The respondent stated it employs almost 44 different nationalities, is committed to supporting a diverse workforce and has a zero-tolerance policy in relation to bullying and harassment.

The respondent contends that, as the complainant has not established facts from which an inference of discrimination can be drawn, he has not satisfied the burden of proof he bears and in those circumstances his complaints are without merit and should be dismissed.

Evidence

Head Chef

A Head Chef of the respondent gave evidence in respect of the issues that occurred in February 2019 as well as confirming his understanding of an investigation process conducted by the respondent. The witness stated that the complainant and a colleague were spoken to informally in relation to performance issues and in respect of delays that were occurring in the kitchen. The witness stated that the complainant was not happy to receive the informal feedback on the performance issues. In respect of the bakers, the witness confirmed that most of the staff were polish, and that polish was mostly spoken but that nobody was subject to racial abuse. The witness stated that bullying and harassment training was provided on a yearly basis. The witness further stated that there was a zero-tolerance policy in respect of bullying and harassment and that all staff were aware of this.

 The witness confirmed in cross examination that although he was a Head Chef, he also worked as a baker but never witnessed any of the alleged incidents or had any email contact with the alleged perpetrator concerning the alleged behaviour towards the complainant. The witness also stated in cross examination that in respect of the investigation commenced concerning the racial slur that three people who were interviewed were all shocked at the allegations and that the interviews in question found nothing to substantiate the complainant’s allegations.

Finance Director

The respondent’s Finance Director gave sworn evidence in respect of the complainant’s appeal of the Investigators report. The witness stated that a letter dated 25th Of October 2019 was received from the complainant seeking to appeal the investigation outcome. The complainant was written to seeking his grounds of appeal but there was no response. The witness stated that a second letter was issued to the complainant and again no response was received from him. The witness stated that, given the serious nature of the subject matter, she felt it was prudent to complete her review of the documentation and the process followed by the investigator. Having done so and in the absence of any participation from the complainant, the witness stated she did not find any evidence of unfavourable treatment towards him or any failure of the respondent to apply due process to the complainant. Having completed the appeal the witness stated that she considered the matter closed. The witness stated that she wrote to the complainant confirming the position on 20th January 2020. It was put to the complainant in cross examination that she was incorrect to conclude the appeal in the absence of input from the complainant. The witness replied that the complainant was given two opportunities to submit his grounds of appeal and had failed to do so.

The within complaint concerns allegations ofdiscrimination on the grounds of disability and race, and accusations of victimisation, harassment, and discrimination in conditions of employment and “other”. While the complaints relate to 2018/2019, the complainant remains employed by the respondent and confirmed at the adjudication hearing on 26th November 20204 that there have been no further issues in the five years since the incidents relating to his complaints occurred.

The Applicable Law

Discrimination

Sections 6 (1) and (2) of the Employment Equality Act, 1998 at relevant parts state:

6.(1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where—

(a) 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,

(b) a person who is associated with another person—

(i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and

(ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination.

(2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are—

(a) - (f) not relevant…… 

(g) that one is a person with a disability and the other either is not or is a person with a different disability (in this Act referred to as “the disability ground”),

Burden of Proof

Section 85A of the Employment Equality Act 1998 provides as follows:

85A (1) 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.

(2) This section is without prejudice to any other enactment or rule of law in relation to the burden of proof in any proceedings which may be more favourable to a complainant.

(3) Where, in any proceedings arising from a reference of a matter by the Authority to the Director General of the Workplace Relations Commission under section 85(1), facts are established by or on behalf of the Authority from which it may be presumed that an action or a failure mentioned in a paragraph of that provision has occurred, it is for the respondent to prove the contrary.

(4) In this section "discrimination" includes—

(a) indirect discrimination,

(b) victimisation,

(c) harassment or sexual harassment,

(d) the inclusion in a collective agreement to which section 9 applies of a provision which, by virtue of that section, is null and void.

Victimisation

Section 74(2) of the Employment Equality Act, 1998 states as follows:

(2) 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 under 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.

Vicarious Liability

Section 15 of the Employment Equality Act, 1998 provides as follows:

15(1) 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.

Continuum

Counsel for the complainant argued that a continuum of discrimination applied in this case. On this point I note Labour Court Determination EDA 179 Dunnes Stores v Breda Mulholland which states as follows:

“It is settled law that in order for the alleged acts of discrimination to be considered by the Court as representing a continuum of discrimination it is necessary to establish that acts of discrimination have actually occurred within the cognisable period set down by the Act for the making of a complaint”.

The Court also stated that:

“Only if such acts of discrimination are found to have occurred in that period, can the Court consider whether Acts outside the cognisable period can be considered as part of a continuum of discrimination.

I have reviewed all documentation in respect of the cognisable period of the second complaint (ADJ-00026226 and have also considered the timeframe as far back as 13th September 2018 which addresses the cognisable period of the first complaint (ADJ-00020627). I accept that an incident occurred in June 2019, but I am not satisfied that the complainant has established through his submissions or evidence that he was treated less favourably on the race ground outside of the cognisable period of this complaint or at all in respect of his disability, as the respondent was not formally on notice of a diagnosed disability during the relevant timeframes.

Post complaint investigation

Counsel for the complainant contends that the reopening of the investigation into the racial slur of June 2019 cannot be considered as it was only commenced following referral of the WRC complaint in December 2019. The respondent’s position on this issue is that the investigation commenced after the receipt of the WRC complaint because that was the first time it was aware of the seriousness of the alleged comments. On this point I note that throughout the entire period of both complaints, the respondent was attempting to assist the complainant and investigate the issues he had raised and be supportive of him. I do not accept that the referral of the complaint to the WRC was the only reason that the investigation commenced when it did and I accept the bona fides of the respondent in this regard.

Conclusions

The parties to the within complaint and the associated complaint (ADJ-00020627) have provided written submissions in relation to the issues and have given evidence by oath/affirmation where necessary. Case law was also provided by both parties and considered as part of the adjudication process.

Disability Discrimination

The complainant asserts that he was discriminated against on the grounds of disability and race. In respect of the complainant’s disability, he states that he has Asperger Syndrome and ADHD and that he was discriminated against by the employer as a result. On this issue I note that at the material time, the respondent was not aware of a formal diagnosis of his disability and the complainant accepted this at the adjudication hearings. There was correspondence in 2018 that suggested the complainant may have undiagnosed health issues such as ADHD, but these had not been confirmed and this led to the complainant seeking payment for such diagnoses from the respondent. The respondent had been seeking confirmation of the diagnosis from the complainant so that it could put in place any reasonable accommodation that the complainant may need and stated at the adjudication hearing on 26th November 2024 that it is still not formally on notice of the complainant’s diagnosis. It was also accepted by the complainant at adjudication that the respondent’s HR Business partner had been extremely supportive throughout and did everything he could to assist him. It is also clear from the correspondence that the respondent organisation made every possible effort to address the issues raised by the complainant throughout the period. On the alleged discrimination on the disability ground, I find that the complainant has failed to establish a prima facie case of discrimination as he has not provided any evidence that he was treated less favourably by the respondent because of a disability within the cognisable period of the complaint or at all.

Race Discrimination/Harassment

In respect of the claim of discrimination/harassment on the race ground, the complainant stated in evidence that he was subject to a particularly offensive and derogatory racial slur which was conveyed to him in Polish. The complainant outlined that he accepted that all staff including himself swore on occasion at work and that he had no issue with that. In respect of the racial slur, the complainant’s evidence was that he didn’t know what it meant until he was told by a third party in October 2019. While the accusation was vehemently denied in the investigation process, and while I have reviewed the documentation on same, the complainant’s evidence under oath during the adjudication process is accepted, on the balance of probabilities, that he was subjected to a racial slur and thereby harassed on the grounds of race.   

Notwithstanding the bona fides of the respondent and the significant efforts it made to support the complainant and address his complaints; it is vicariously liable for the actions of its employees in relation to this issue and the complainant is deserving of compensation for the harassment he encountered.

Victimisation and Discrimination in relation to conditions of employment and “other”

Having considered the totality of the submissions and evidence, I find that the complainant has not established that he was victimised or discriminated against in relation to his conditions of employment or other, within the cognisable period of the complaint or at all. Accordingly, these complaints are not well founded.

On the basis of the evidence and submissions of the parties to the within complaint, I find that the complainant was harassed on the race ground within the cognisable period of the complaint. Despite the respondent’s support, which the complainant acknowledged, the respondent is vicariously liable for the actions of its employees. In respect of the harassment which occurred on or about 23rd June 2019, the respondent is directed to pay the complainant €4,000.00 in compensation.

In respect of the complainant’s other complaints, I find that he has not raised a prima facie case of discrimination on the disability ground. I also find that the complainant was not discriminated against in relation to his conditions of employment or “other.”  I further find that the complainant was not subjected to any adverse treatment and therefore not victimised within the meaning of the legislation. Accordingly, these complaints are not well founded.

Cases cited by the complainant:

Cork City Council v McCarthy EDA21/2008

Nagarajan v London Regional Transport [2001] UKHL 48

Portroe Stevedores v Nevins: Labour Court Determination No: EDA 1/2005

O’Higgins v Labour Court and UCD [2013] IEHC 508

Melbury Developments v Valpeters: Labour Court Determination No: EDA0917

Citibank v Ntoko (2004) 15 ELR 116,

Mitchell v Southern Health Board [2001]ELR 201

Von Colson and Kamann v Land Nordrhein- Westfalen [1984]ECR 1891

Fox v Lee DEE 06/2003

Cases cited by the respondent:

Cork City Council v McCarthy EDA21/2008

Brannigan v The Equality Tribunal and County Louth VEC [2016] IESC 40

Discrimination, harassment, victimisation,