Complainant

Respondent

Parties

Chris  Harold

Westgrove Hotel

Complainant

Respondent

Anonymised Parties

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Representatives

Paula Walshe Arag Legal Protection Limited

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-00066922-001

23/10/2024

The complainant commenced employment with the respondent, a hotel, as a General Manager on 13 February 2024. His employment ended on 3 August 2024. A complaint form was received by the WRC on 23 October 2024. In his complaint form the complainant alleges that he was “dismissed for a discriminatory reason or for opposing discrimination.”

In his complaint form the complainant submits that he was fired without notice by Ms Bonnie Reidy, General Manager of the Westgrove Hotel, as he arrived to work.  No reason was given for his dismissal and Ms Reidy only said to him that, “It’s not working out” and that we [the complainant and the hotel] had to, “go our separate ways today.”

At no time during his employment did the complainant ever receive a warning or have concerns about his performance raised either verbally or in writing, that would have given him the opportunity to improve.

On 5 August 2024, two days following his dismissal the complainant contacted the owner of the hotel seeking some sort of intervention to try and resolve the matter, however nothing came of it.

The complainant submits that he had never been late for work, and he got copious feedback from guests praising his work. He got on well with his colleagues and so he had no reason to expect  dismissed 10 days before his probation period ended.

In correspondence to the WRC the complainant provided several documents from guests of the hotel praising his work and thanking him for his quality input into various events such as weddings and conferences.

The complainant submits that he believes that if he was not fired for reasons of a professional nature then in his opinion it was because of his sexuality.  Only two weeks before he was dismissed, he told a colleague (Ms Reidy, the General Manager) that he was a gay man. He cannot think of a single performance reason why he was dismissed and is of the view that his dismissal was linked to his sexual orientation.

Mr Harold gave evidence on Affirmation at the hearing.

In opening his evidence, Mr Harold stated that he believes his dismissal is related to him saying in a conversation with a colleague, two weeks before his dismissal, that he is a gay man.  There was no other reason for him to have been dismissed so abruptly; nothing had been brought to his attention about his performance and then suddenly everything changed.

The complainant stated that he covered events, the bar and the restaurant. He was never given an indication that things were not going well. Not only was the dismissal abrupt, but the way it was done was unsatisfactory; he was given no reason given about what he needed to change.

The complainant stated that he got on well with his colleagues and he enjoyed the environment. On Saturday 3 August 2023 there was a wedding on in the hotel.  The complainant said he would do it, but he was told to go home by Ms Reidy, the next day he was removed from a staff WhatsApp group.

On foot of his dismissal the complainant did some soul searching and recalled telling a colleague he was a gay man and then two weeks later he was dismissed. 

The complainant stressed that had he been told there were problems with his conduct and/or his performance he would have addressed any shortcomings, but he was never given the opportunity he was just dismissed without warning.

In response to questions put to him in cross examination, Mr Harold accepted that he was still on probation at the time of his dismissal and that the disciplinary did not apply to him, however “not giving him reasons is another thing.”

The complainant refuted the suggestion that Ms Reidy had spoken to him approximately five times about his performance; “we never had a discussion that made me change my behaviour.” He also refuted an assertion put to him that concerns were raised with him about his relationships with other members of staff.  The complainant stated that he was never given an indication that he had to improve. The complainant also refuted an assertion that two letters of complaint, written by other members of staff, were discussed with him and Ms Reidy.

The complainant did not accept an assertion that everyone working in the hotel was aware of his sexuality within two weeks of him starting to work there. The complainant stated that he did not know whether the hotel employs people of various sexual orientations. 

The complainant commenced work with a new employer in or around October 2024. It is different work to that which he did for the respondent and the terms and conditions are not as good as those he enjoyed when he worked for the respondent.

In response to a question from me as to whether anyone working in the hotel during his employment had referred to his sexual orientation, the complainant’s answer was, no.

In closing remarks, the complainant stated that he loved his job and that he had never been told about things which he needed to improve. He said he enjoyed his time working for the respondent and there is a big difference between a small mistake and a big one.

The respondent provided a written submission.

The respondent submits that there were a number of issues regarding the complainant’s performance and staff interactions. These incidents were raised with the complainant on an ongoing basis throughout his employment. In addition, there were two formal complaints made by other members of staff regarding the complainant’s conduct. The submission outlines several incidents which were of concern to the respondent which were raised with the complainant. Ms Reidy spoke with the complainant on 29 July 2024 advising him that she was not happy with his performance.

On the night of 2 August 2024, it was decided that the complainant had not met the standards required to pass his probation and on 3 August 2024 the respondent met with the complainant and informed him that his employment would not continue.

The respondent submits that the complainant’s sexual orientation was not a factor in the decision to terminate his employment.  The respondent was aware of the complainant’s sexual orientation from approximately two weeks into his employment, not two weeks from the end of his employment as alleged by the complainant. The complainant’s sexual orientation was of no interest or consequence to the respondent. The respondent has had, and does have currently, staff members other than the complainant who are gay.

Ms Bonnie Reidy, General Manager of the hotel, gave evidence on behalf of the respondent on Affirmation at the hearing.

Ms Reidy stated that things were very good initially in relation to the complainant’s performance. However, cracks began to appear, and she had to have conversations with him. The witness went through several events that had given rise to concern.  She said she had a meeting in her office with the complainant on 29 July 2024 to tell him she was not happy with his performance.  She stated that the complainant understood 100% that things had to improve. Things came to a head on 3 August 2024 and “that was it- I did not do it lightly.”

Asked about the complainant’s sexuality, Ms Reidy stated that she knew of his sexuality long before his dismissal. She totally refuted the assertion that the complainant’s dismissal had anything to do with his sexual orientation. His dismissal had “nothing to do with his sexual orientation.”

In response to questions put to her in cross examination, Ms Reidy stated that she learned of the complainant’s sexual orientation by way of “Chinese whispers.”

Other witnesses gave evidence on behalf of the respondent each supporting the contention that there were issues with the complainant’s performance.

When asked by me why the complainant had not been offered the possibility of an appeal of his dismissal, Ms Reidy stated that he was on probation and so it was not necessary. She stated that the complainant was dismissed for not doing his job properly, that there was no negative bias because of his sexual orientation.

In closing remarks, the respondent stated that the complainant has not provided a comparator and it does not believe that the complainant has raised a prima facie case of discrimination. No link has been established between his dismissal and his sexual orientation. There were serious issues raised throughout the period of his employment which accumulated to such a degree that the respondent decided to let him go. This is not an Unfair dismissals case; the complainant does not have sufficient length of service to ground such a case and the complaint can only succeed if the complainant proves he has a prima facie case of discrimination because on his sexual orientation.  Even if the respondent’s processes were not up to scratch it is not enough to switch the burden of proof to the respondent.

Establishing a prima facie case.

The complainant alleges that he was discriminatorily dismissed because of his sexual orientation, he is a gay man. In a claim of discrimination under the Act it is for the complainant in the first instant to establish surrounding or primary facts which could lead to an inference that discrimination has occurred before the burden of proof shifts to the respondent. There is a three-tiered test for establishing if the burden shifts to the Respondent which is often referred to as the “Mitchell” test.

It provides: -

1) It is for the complainant to prove the primary facts upon which he or she relies in seeking to raise a presumption of discrimination. If the complainant fails to do so, he or she cannot succeed.

2) If the primary facts relied upon are proved, it is for the Adjudication Officer/Court to evaluate those facts and consider if they are of sufficient significance to raise a presumption of discrimination.

3) If the facts proven are considered of sufficient significance to raise a presumption of discrimination the onus of proving that there was no infringement of the principle of equal treatment passes to the respondent (Mitchell v Southern Health Board [2001] ELR 201)

In this instant case no evidence has been adduced that raises a presumption of discrimination and therefore the complaint falls at the first hurdle. Nothing provided in writing or given in oral evidence at the hearing points to a presumption of discrimination. The complainant is of the opinion that his disclosure to a colleague of his sexual orientation may have been linked to his dismissal does not stand up to scrutiny.  The complainant himself seems less than convinced of his own case as in his complaint form to the WRC wrote, regarding his sexuality, that, “maybe it’s not relevant…”.

The complainant failed to provide a comparator, someone of a different sexual orientation, who was treated more favourably than he was in similar circumstances.  The lack of a comparator makes grounding a case of discrimination a very difficult task.

At no time during his employment with the respondent was his sexual orientation mentioned by any other member of staff. I also accept Ms Reidy’s evidence that she knew within a couple of weeks of the complainant’s commencement in the hotel of his sexual orientation; but this was not important to her. I also accept Ms Reidy’s evidence that the reason that the complainant’s employment ended was to do with issues of performance and not his sexual orientation.

Notwithstanding the above, I do believe that the matter of the complainant’s performance and subsequent dismissal was badly handled by the respondent. Every employee is entitled to know if their performance is not what it should be and that it needs to improve; this basic tenet of management requires conversations and confirmation in writing.  If an employee is not addressing the shortcomings identified to them then the matter should be escalated by way of formal warnings, in writing.  Simply reaching the end of the road without giving the employee sufficient and appropriate warnings is not good practice and is unfair to the employee.  In this instant case, whereas the complainant may have been spoken to, he deserved a lot more than to be summarily dismissed without so much as a verbal waring on file.

In conclusion, I find that the respondent failed in its duty to this employee in the manner of his dismissal, however, the complainant has failed to raise a presumption of discrimination based on his sexual orientation and therefore his complaint cannot succeed. 

The complainant was not discriminated against.

Discrimination, comparator, prima facie, burden of proof.