Complainant

Respondent

Anonymised Parties

A Senior Manager

A Restaurant

Representatives

Shaun Boylan B.L. instructed by Ormonde Solicitors

DD HR Support and Advice

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-00055472-001

09/03/2023

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

CA-00055472-002

09/03/2023

The complainant was employed by the respondent as a senior manager from 27th October 2022 – 2nd November 2022. The complaints relate to discrimination as the complainant stated he was not provided with reasonable accommodation in respect of his disability. The complainant also asserts he was discriminated against in relation to his conditions of employment. (CA-00055472-001). The complaint also related to an alleged discriminatory dismissal (CA-00055472-002).

Naming of the parties

I have used my discretion and decided to anonymise the parties to this complaint on the basis that the complainant is entitled to privacy in respect of his mental health challenges at the material time and that he had also been previously diagnosed with Attention Deficit Hyperactivity Disorder (ADHD).

Submissions

The complainant met with the respondent principal in early September 2022 and agreed to commence employment in October 2022. Due to the complainant’s disability, it was agreed that he would work four days per week and would not work on a Saturday. The complainant’s position is that he commenced working on or about 27th October 2022 and on or about 2nd November 2022 he was dismissed from his employment by the then restaurant director because of his poor mental health arising from ADHD. The complainant stated that he was told by the restaurant director that working part time and not on a Saturday would be a problem as there is a requirement of Managers to work 70-80 hours per week.

On 3rd November 2022, the complainant was invited to attend a meeting with the restaurant director in relation to his employment and a possible outcome of the meeting could be the complainant’s dismissal. As the complainant had already been dismissed by the restaurant director on 2nd November 2022 and due to his unavailability on the 3rd November 2022, the complainant sought a postponement of the meeting.

The complainant submitted a grievance to the respondent in relation to his dismissal on 6th November 2022. The complainant’s position is that it was only after he had raised a grievance that future invites to meetings ceased to mention possible adverse outcomes in relation to the complainant’s employment. The complainant declined to attend any meeting with the restaurant director as he had raised a grievance in relation to his dismissal by him. The complainant subsequently met the Managing Director of the respondent on 26th November 2022 and was informed that the restaurant director was no longer in the employment of the respondent. It was also clarified to the complainant that he had not been dismissed from the organisation.

Counsel contends that the complainant was not provided with the reasonable accommodation that had been agreed prior to his commencement of employment and was discriminated against on that basis. In addition, counsel contends that the complainant was subject to a discriminatory dismissal when he was dismissed because of his poor mental health arising from ADHD.

In concluding his submissions, counsel for the complainant outlined the legal position in relation to the complaint of discrimination, the burden of proof which the complainant bears in relation to the complaint and the vicarious liability of the respondent concerning the actions of the restaurant director towards the complainant. Counsel cited the cases of Minaguchi v Wineport Lakeshore Restaurant [DEC-E2002-020], Kieran McCarthy v Cork City Council [EDA0821] and Niscayah Limited v Rachel McCarthy [EDA1328] in support of the complainant’s position.

Witness Evidence

The complainant gave evidence by affirmation at the adjudication hearing. The witness stated that he had more than 30 years’ experience in the hospitality sector and had worked in several high-profile restaurants. The witness stated that he met with the respondent principal in early September 2022 with a view to joining the organisation. The complainant stated that he discussed his previous experience with the respondent principal and informed him about his ADHD diagnosis and about the breakup of his relationship. The witness stated that he was successful in getting the job because of his experience and because of those who had recommended him to the respondent. The complainant stated that he also spoke with the operations director and was clear about his ADHD diagnosis. The complainant stated that he then met the restaurant director in mid-September and discussed his ADHD diagnosis, and the issue of his relationship break up. The witness confirmed that he was employed in a part time role, 4 days per week and that he did not work on Saturdays. This was the only accommodation the complainant said he needed in respect of his disability. The witness stated that although he was working part time, he was happy to do whatever was needed regarding the opening of the restaurant. The witness stated that he started in the employment on 27th October 2022. As the opening of the restaurant was behind schedule a number of staff were sent home in the week prior to the opening. The witness stated that on 2nd November 2022 he met with the restaurant director, and it was in this conversation that the complainant stated he was dismissed because of his poor mental health arising from ADHD.

Submissions

The respondent refutes the complainant’s position that he was discriminated against, that he was not provided with reasonable accommodation for his disability and that he was dismissed for discriminatory reasons. The respondent’s position is that the complainant worked for one week only (27th October 2022 until 2nd November 2022) and in that time was spoken to by the restaurant director in relation to time keeping, leaving the restaurant to walk his dogs and general issues relating to his performance during a particularly busy week prior to the opening of the restaurant. The respondent stated that the restaurant director was not aware of the complainant’s disability at any stage and the issues regarding the complainant’s mental health and stress were brought to his attention by other staff members following conversations with the complainant. The respondent stated that the complainant assumed he had been dismissed by the restaurant director and continued to pursue the issue despite the fact that he had been informed that he had not been dismissed and was invited to discuss this issue with the Managing Director of the respondent and to also discuss the other issues that had arisen since the complainant had commenced his employment.

Witness Evidence

The former restaurant director gave evidence by affirmation at the adjudication hearing. The witness stated that the complainant had previously met with the restaurant owner in relation to commencing employment. The witness stated that while the complainant may have disclosed his ADHD diagnosis to the restaurant owner, he himself was not aware of it. The witness stated that he was aware that the complainant was separated and was attending couples therapy, but the issue of the complainant’s mental health and disability was not mentioned. The witness stated that on or about 2nd November 2022, the complainant said he was stressed and was going home to walk his dogs. In respect of the alleged dismissal, the witness stated that the complainant was not dismissed. The witness stated that, the week in question was chaotic, as the building work at the restaurant was nearing completion and menus/rosters and other staffing issues were being arranged. The witness stated that he never said that the complainant’s agreed hours of attendance would not work out. It was in the context of the preparations for the restaurant opening, that the witness stated the complainant was more suited to a “back of house” role given the stressful environment that he was experiencing at that time.

In cross examination, counsel for the complainant put it to the witness that the complainant had notified him of his disability during the onboarding process. The witness disagreed and stated that he had never mentioned his mental health or ADHD to him. The witness stated that the stress that he was made aware of was brought to his attention by two colleagues during the week of the complainant’s employment and it was in that context that the issue of a back of house role came about. The witness reiterated his position that the complainant was not dismissed from his employment.

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 F156[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.

Conclusions

There is a complete conflict of evidence between the parties to this complaint. The complainant is stating he was discriminated against on the disability ground and was not provided with reasonable accommodation as agreed prior to his commencement of employment. He further claims to have been dismissed for discriminatory reasons due to his poor mental health arising from ADHD.

In relation to the dismissal and having heard the evidence of both sides, I am not satisfied that the complainant was dismissed from his employment. It appears to me that in the conversation with the restaurant director, issues arose between the two colleagues, and within the context of the particularly stressful week that was unfolding, the complainant believed he had been dismissed on the basis of his poor mental health arising from ADHD having been told that his part time employment status and not working Saturday would be a problem. In his evidence, the former restaurant director stated that he had never said that to the complainant and, that in any event, he had no idea about the complainant’s disability. The issue of the complainant’s stress levels was addressed in the evidence of the former restaurant director, and it was his view that a “back of house” role would be more suitable to the complainant in that period as he felt the complainant was experiencing high levels of stress during that time. In my view, the complainant was not dismissed by the restaurant director either on a discriminatory basis or at all. It is my finding that the complainant has not established that he was dismissed on a discriminatory basis as claimed.

In relation to the complaints of discrimination on the disability ground, the complainant is stating that he was not provided with reasonable accommodation and was also discriminated against in his conditions of employment. I do not find this to be the case. The fact that the complainant worked for the respondent for just one week and had stated that he was willing to do whatever was needed to get the restaurant up and running informs my view that he was not treated less favourably by the restaurant director during that time. I also find that issues regarding the reasonable accommodation that the complainant had agreed with the respondent principal could easily have been clarified if deemed necessary as the restaurant director had stated that he was unaware of the complainant’s disability or of his requirement for reasonable accommodation. In all the circumstances of this complaint, and while I accept the bona fides of both parties, I find the evidence of the restaurant director more convincing, that he was unaware of the complainant’s disability during the week of the complainant’s employment and his need for reasonable accommodation. I further find that the restaurant director did not dismiss the complainant from his employment. Accordingly, I find the within complaints are not well founded.

CA-00055472-001 - Discrimination

For the reasons stated above, I find that the complainant has not established a prima facie case of discrimination. Accordingly, the complaint is not well founded.

CA-00055472-002 – Discriminatory Dismissal

For the reasons stated above, I find that the complaint of discriminatory dismissal is not well founded.

Cases cited by the complainant:

Minaguchi v Wineport Lakeshore Restaurant [DEC-E2002-020]

Kieran McCarthy v Cork City Council [EDA0821]

Niscayah Limited v Rachel McCarthy [EDA1328]

Discrimination, discriminatory dismissal