Complainant

Respondent

Anonymised Parties

Take Away Assistant

Take Away

Representatives

  Self

 Owner

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-00066667-001

14/10/2024

The Complainant commenced employment on the 26th of June 2024 and left after a few months alleging penalisation linked to informing her manager that she was sexually harassed by a work colleague.

There were also other issues complained about, such as not receiving pay on time. This grievance led to a heated exchange one day between her and her supervisor. Based on a change in attitude of her supervisor after this heated disagreement, the Complainant asked to see the Manager of the business.

At that meeting the Complainant explained how frustrated she was about not getting paid on time and on top of that how she had to deal with a colleague who was harassing her. On hearing about being harassed, the manager asked to meet the other colleague, who denied that he had done anything wrong.

Soon after that meeting the Complainant claimed that her hours were cut in half.

The Respondent stated that the Complainant was limited in what work she could be assigned to. The takeaway makes pizzas and after several weeks of trial, the Complainant was not very good at it. It was for this reason that her hours were reduced as the demand for what she was able to work on was limited. However, it denied that the Complainant was punished for informing the employer that another colleague had inappropriately touched her.

The Complainant resigned from her position. According to the employer, she didn’t want to work all sections and the employer wanted to train her in all roles so that she could have the same hours as others. The Complainant was abusive, and her manager stated that there was no basis for her claim She had fewer hours because she couldn’t make pizzas at the same volume as others. The link between the hours of work, delays in payment and now the alleged discrimination cannot be linked. The comment about discrimination arose in a discussion about how difficult she found working at the takeaway which makes pizzas.  During those conversations she stated as well as finding the work difficult, a work colleague was harassing her.

Different text messages were opened that show that the Complainant found the working environment toxic.

The Complainant alleges that after making a complaint about another work colleague who she alleged sexually harassed her at work, her hours of work were reduced by half.

The Complainant’s hours were reduced not because she made a complaint about being sexually harassed but because she could only work in one or two areas. The takeaway makes pizzas, and she couldn’t cook pizzas at the volume required. She did receive training in pizza cooking but was not good at it. The period of employment was relatively short, and the Complainant resigned and walked off the job. She in fact raised several issues during her period of employment. She was not reduced in hours or penalised for making a complaint.

In an email dated 30th of October 2024 the Complainant stated that she left the employment because:

“I wrote a complaint on how I was treated unfairly in the workplace and how I had to leave my workplace because of bullying and being a target to others feeling of superiority.”

In the same email the Complainant stated that she never had any issue working in any area, rather her supervisor wouldn’t train her, and she couldn’t be expected to cook pizza at a high volume.

Text messages do show differences between the employer and the Complainant concerning pay dates.

The facts do show that there were differences between the parties about pay dates, training and the ability to work in all areas.

The following detail payments made to the Complainant:

Week 37 €649 9th September 2024

Week 38 €400 16th September 2024

Week 39 €430 23rd September 2024

Week 40 €229 30th September 2024

Week 41 €174 7th October 2024.

It is credible for pay to reduce where an employee can only be assigned to work that demand fewer hours. It also credible for hours to begin higher where an employee is being trained and then reduce if that induction is not working out.

Weeks 38 to 41 detail that decline.

Week 38 pay records show a wide range in wages earned with 4 employees receiving far less.

Week 39 pay records show again a wide range in wages earned. It also shows that payroll amounts between week 38 to 39 for other employees reduced week on week. Most employees were earning less than €360 gross per week.

Week 40 pay records show the highest paid employee earned €586 gross and the Complainant earned more than 3 other employees and about the same as another.

The period of employment is relatively short.

In fact, the payroll records show significant variation in payroll earnings for each pay period among most employees. Also, several employees earned less than the Complainant. The records do not provide sufficient evidence that raise an inference of discrimination because of her complaint.

The Complainant carries an initial burden to raise an inference that the alleged penalisation arose because of her sharing with her employee details about being sexually harassed by another work colleague.

That burden if made out, moves the burden of proof onto the Respondent. There must be a fact that shows a possible link between the penalisation alleged and the ground being relied upon.

In this case there are several competing variables in the pot that can explain the reason for the reduction and the poor relationship between the parties such as delay in making payroll lodgements, lack of mutual respect and differences about the adequacy of training. It also details a grievance by the Complainant that attributes her resignation to how she was being allegedly bullied and treated poorly in addition to the sexual harassment allegation.

The penalisation in this case is linked to reporting an incident of sexual harassment.

However, there are several competing complaints being made out about how poorly the Complainant was being treated along with the employer stating that the employee was limited to what work area she could be assigned and that would impact her earnings. This is particularly so as the takeaway made pizzas, and the Complainant was assessed to be poor at making pizzas.

The period of employment also was short with many points of differences between the parties during this relatively short period. The payroll records show a high degree of variability in payments week on week for other employees as well and that others earned a relatively low amount.

The Complainant left her employment.

I find that there are so many competing causes that explain the lower wage other than penalisation for informing her supervisor of an alleged incident of harassment, that the prima facie test has not been made out. To do so and accept that making the allegation and the decline are the primary facts, would place the Employer in an invidious position if those other competing causes were set aside and displaced and the allegation was determined the sole primary fact when the other facts are more likely to explain the reduction in salary when the entire factual matrix is considered such as the variability in pay among all employees and the fact that the training in pizza making is accepted by both sides as being poor. However, both parties blame one another for the fact that the Complainant was not competent to make pizza. In this case I determine that there is not sufficient evidence to support a prima facie case and that inference of discrimination could reasonably be drawn from the alleged facts that are relied upon to allege discrimination.

The case law states that a prima facie case must be made out by the Complainant before the Respondent is required to rebut the allegation of discrimination.

Prima Facie:

The Prima Facie testis not an onerous test. It requires some facts that tend to show the possibility of discrimination. It is not a probative burden.

In Mitchell v Southern Health Board, DEEO11 the Labour Court held that a ‘claimant must prove, on the balance of probabilities, the primary facts on which to rely in seeking to raise a presumption of unlawful discrimination.’  And in McCarthy v Cork City Council EDA0821 ‘that at the initial stage the complainant is merely seeking to establish a prima facie case. Hence it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts.’

I note that in Murdoch and Hunt 2021 Edition Bloomsbury Prima Facie is defined as:

[Of first appearance]. On the face of it; a first impression. A prima facie case is one in which there is sufficient evidence in support of a party’s charge or allegation to call for an answer from his opponent. If a prima facie case has not been made out, the opponent may, without calling any evidence himself, submit that there is no case to answer, whereupon the case may be dismissed.

The principle in discrimination litigation is that once a Claimant establishes a prima facie case of discrimination the onus shifts to the Respondent, who must prove that no discrimination has occurred.

And the Court of Appeal England and Wales in Igen v Wong EWCA/Civ/2005 stated that the claimant must ‘prove on the balance of probabilities facts from which the tribunal could conclude, [this does not mean must prove on the balance of probabilities] in the absence of an adequate explanation, that the employer has committed an act of discrimination against the claimant.’

 There are so many competing facts that it would be unfair to conclude that an inference of discrimination has in fact been made out. There is a high level of inconsistency in the facts that have been established to conclude that the likely operative cause in reduced wages was making of a complaint about being harassed at work. There were several other complaints made during the relatively short period of employment. There is variability in the payroll records that show reductions for other employees as well.  The Complainant’s account for leaving related to being bullied by her supervisor. There are ongoing issues about being paid on time. There are differences between the parties concerning the adequacy of training and being assigned to cooking pizza.

It is also the case that the Labour Court in Melbury Developments Ltd v Valpeters EDA 1728 has held that membership of a protected group and evidence of adverse treatment is not sufficient to shift the burden of proof in a direct discrimination case, there must be a causal link between the ground and treatment. However, a difference in treatment can meet this test, In Brunnhofer, for instance, the CJEU held that where a female worker proves that the pay she receives from her employer is less than that of a male colleague and that they both perform the same work or work of equal value, she is prima facie the victim of discrimination.28 (the European Equality Law Review 2019/2 The Burden of Proof in Anti-Discrimination Proceedings,Judgment of 26 June 2001, Susanna Brunnhofer v Bank der österreichischen Postsparkassse AG, C-381/99, para. 58)

The evidence presented by the Complainant is not sufficient that it tends to show that she received less favourable treatment arising from sharing with her supervisor that her colleague allegedly harassed her. That complaint was denied by the colleague. The short period of employment was eventful, and it could be characterised as difficult and challenging for both parties.

Harassment:

The Employment Equality Act 1998 as amended defines harassment at section 14 A as:

(7) (a) In this section—

(i) references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds, and

(ii) references to sexual harassment are to any form of unwanted verbal, non-verbal or physical conduct of a sexual nature, 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.

(b) 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.

I note that in Employment Equality Law 2nd ed (Bolger, Bruton and Kimber) Round Hall Press the scope of harassment is defined and under the Act what constitutes harassment, importantly it can be a single event.

It is important to remember that the scope of harassment on a protected ground is an act which subjects a person to unwanted conduct on any of the protected discriminatory grounds, for example, sexual harassment, religious harassment or racial harassment. The Employment Equality Acts do not apply to a generalised bullying or harassment which has no link to the discriminatory grounds. In addition, the definition of bullying which has been accepted by the Supreme Court and High Court refers to “repeated inappropriate behaviour” and specifically excludes a single event. There is no similar requirement in the definition of harassment or sexual harassment in the Employment Equality Acts. Therefore, a single complaint of harassment or sexual harassment can breach the Acts.

 It is not denied that she complained about being harassed by a colleague. However, the salary reduction is not easily explained or possibly explained by the making of that complaint.

I dismiss the complaint as the Complainant cannot make out a prima facie case of discrimination on the facts that there are so many credible competing causes to explain the reduction in salary. The Complainant’s own explanation and reason for leaving her employment was:

“I wrote a complaint on how I was treated unfairly in the workplace and how I had to leave my workplace because of bullying and being a target to others feeling of superiority.”

I am not satisfied that the burden of proof should shift to the Respondent having regard to all the circumstances of this claim as no credible primary fact has been established sufficiently that shows a link between the alleged penalisation and the complaint of sexual harassment.

I find that the Complainant was not discriminated against and find that no prima facie case has been made out. The complaint is not well founded.

I am not satisfied that the burden of proof should shift to the Respondent having regard to all the circumstances of this claim as no credible primary fact has been established that shows a link between the alleged penalisation and the alleged complaint of sexual harassment.

I find that the Complainant was not discriminated against and find that no prima facie case has been made out. The complaint is not well founded.

Prima Facie