Complainant

Respondent

Anonymised Parties

A Shop Assistant

A Respondent

Representatives

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-00068393-002

02/01/2025

This case was referred to the Workplace Relations Commission under section 77 of the Employment Equality Acts 1998-2015 on the 2nd of January 2025.  

 The complainant has lodged a claim of discrimination on grounds of disability and gender as well as claims of harassment.   In addition, the complainant has lodged a separate claim of Unfair Dismissal under Section 13 of the Industrial Relations Act.

The complainant submits that

He was employed by the respondent from on 2nd of September 2024 until 2nd of December 2024 when he was told that he was being dismissed but was given the option to stay on until the New Year.

The complainant submits that On 28 November he mistakenly gave a customer €100 cashback after their card was declined. He submits that he  immediately reported the error and offered to deduct the amount from his wages (which was not done).

The complainant submits that on 2 December the owner, Mr. K returned from holiday and informed the complainant that he was to be dismissed  due to the mistake.  Mr. K called the mistake  a “red line.” He gave the complainant two options: leave immediately with pay for the week or stay until after Christmas. The complainant chose to stay.

The complainant submits that he later reconsidered his decision to stay until after Christmas and instead decided not to return to the job.  The complainant submits that on 3 December: he contacted the manager Ms C to inform Mr. K and arrange collection of owed wages. The complainant submits that Ms. C  responded that he was owed nothing and that Mr. K would deduct the €100 from his  pay.    Following this he phoned Ms C and asked to speak to the  manager Mr. K. 

While he was on the phone waiting for Mr. k to come to the phone he submits that  Ms C became very rude and after calling Mr. K to come to the phone, the complainant heard her say to  someone in the background "that chap is autistic".

The complainant submits that this wasn't the first time Ms. C made a remark like that and submits that she  previously asked the complainant said "are you autistic or something" at the start of his employment when she watched him making a roll on the deli for his lunch as he  didn't make it at the speed and the way she would.    The complainant did not report this to Mr. K.

The complainant also submits that he was the only male staff member employed not including the owner, and states that because of this whenever there was a problem he would be the only one addressed about it even if he wasn't the cause.

The complainant also adds that when Mr. K called him up to the office to tell me he was letting him go, during the talk he compared him to other staff members and told the complainant that he didn't have the "fire" they did, and he wasn't as loud.

The complainant submits that Mr. K told him that he had to be loud and had to be able to shout at customers that are being nasty,      The complainant submits that he told Mr. K that that is not the type of person he is. He submits that Mr. K then replied that’s okay, but you have to be that way working in a shop in (a named area).

The respondent denies that there was any discrimination on disability or gender or on any grounds.

The respondent submits that the complainant did not complain to him about any issue or bad treatment by other staff.

The respondent submits that the complainant had made a lot of mistakes during his short time in his employment and that he was given a lot of leeway in this regard

The respondent submits that the final mistake made by the complainant cost him €100 and so he had to let the complainant go during his probationary period after 12 weeks in employment.

The respondent stated that as it was close to Christmas he gave the complainant the option of staying on until after Christmas so he would not be without money for Christmas which the complainant initially accepted but the next day changed his mind and phoned to say he would not be coming back to work.

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

CA-00068393-002

02/01/2025

The Employment Equality Acts 1998-2015 (the “Acts”) prohibit discrimination in employment-related areas on any of the protected grounds. 

Section 6(1) of the Acts 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) (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,”

The gender ground is specified in section 6( 2) of the Acts as meaning that between any two persons “they are of different gender….. ”. 

The disability ground is specified in section 6(2)() of the Acts as meaning that between any two persons “that one has a disability ……. ”. 

Section 14A(7) defines harassment in relevant part as:

“… any form of unwanted conduct related to any of the discriminatory grounds,

…

(b) 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.

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.”

Harassment constitutes discrimination in relation to an employee’s conditions of  employment.  Section 14A(2) provides specific defences for an respondent in harassment cases.

Section 85A of the Acts addresses the burden of proof in claims under the Acts.  In the first instance a complainant must establish facts from which discrimination may be inferred; thereafter the burden of proof passes to the respondent to rebut the presumption of discrimination.  Section 85A states as follows:-

"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."

In relation to the establishment of facts, I refer to the following extract from the Labour Court’s determination in Melbury Developments Ltd v Valpeters [2010] 21 ELR 64:-

“Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn.”

The complainant at the hearing in support of his claims on the gender ground referred to a statement he alleged was made by the owner Mr. K wherein he states that Mr. K told him that ‘it was great to have another male around to help with the heavy lifting’.

In addition,  the complainant at the hearing outlined 2 incidents which he submits support  his claim of discrimination and harassment on grounds of gender 

The complainant told the hearing that on one occasion he was working on the tills along with  another employee when a supervisor came along and shouted at him that there was no need for two staff to be on the tills and so the complainant was moved to work on the shop floor.  The complainant told the hearing that later on another employee had come back from her lunch and had proceeded to work on the tills at the same time as the complainant following which the manager Ms. C shouted at the complainant that he should not be on the tills.  The complainant asserts that the amounts to less favourable treatment on grounds of his gender.

The complainant in support of his assertion of discrimination on grounds of gender  at the hearing  also referred to a statement he alleged was made by the owner Mr. K whom he alleged told him   that it was great to have another male around to help with the heavy lifting.

When asked at the hearing how this related to discrimination/harassment on grounds of his gender the complainant replied that he was the only male working in the shop apart from the owner Mr. K.

I note from the evidence adduced that the complainant claims that he was subjected to discrimination on grounds of gender however I am satisfied from the totality of the evidence adduced that the  complainant was not less favourably treated  or harassed on grounds of his gender.

The complainant in outlining his claim on grounds of disability stated that he has a diagnosis of sensory dyspraxia and Dyslexia.  The complainant stated that he did  not notify the respondent of this disability and also added that his claim was not grounded on this disability.

The complainant went on to state that his claim was grounded on a disability which he did not have but which Ms. C had had attributed to him.    

 The complainant referred to an incident where he stated that he had phoned the shop on the 2nd of December to talk to the owner Mr. K when Ms. C had answered the phone the complainant then asked to speak to Mr. K and before handing the phone to Mr. K the complainant states that he heard Ms. C  say to someone in the background "that chap is autistic".  

The complainant stated that his mother had also been listening in at the time and she confirmed to  that she heard this being said.   Witness for the respondent Mr. K stated that he did not hear Ms. C make this comment  he stated that the shop was very busy and noisy at the time  and that Ms. C  had called him from a distance to take the phone.

 The complainant stated that he did not discuss this matter with Mr. K as his mother spoke to Mr. K on the phone.  Mr. K stated that this matter was never raised with him by the complainant.   The complainant’s mother at the hearing stated that she had told Mr. K on the phone that his staff had treated the complainant badly and she had said that it was very upsetting for her as a mother to see her son being treated like this.   She stated that Mr. K had apologised on the phone.

The complainant by way of background to the phone call  advised the hearing of an incident which happened a few days prior to the phone call whereby the complainant had made a mistake which resulted in him paying out €100 to a customer whose card had been declined.   The complainant advised the hearing that the owner, Mr. K had returned from holiday a couple pf days later and had informed the complainant  that he was to be dismissed  due to the mistake.  Mr. K called the mistake  a “red line.” He gave the complainant two options: leave immediately with pay for the week or stay until after Christmas. The complainant chose to stay on until after Christmas.

The complainant advised the hearing that  he later reconsidered his decision to stay until after Christmas and instead decided not to return to work.  The complainant advised the hearing that he did not go to work the next day and that  he contacted the manager Ms. C to inform Mr. K and arrange collection of owed wages. The complainant submits that the  manager Ms. C  responded that he was owed nothing and that Mr. K would deduct the €100 from his  pay.

The complainant advised the hearing that he then phoned Ms. C and asked to speak to the owner Mr. K and that it was during this phone call that he heard Ms. C ,make the offensive comment.   

Witness for the respondent Mr. K stated that he did not hear Ms. C make any such comment at the time.   Mr. K in outlining the background to the phone call stated that he had returned from holidays to find that the complainant has cost him to lose €100 due to a mistake he had made.   Mr. K stated that this wasn’t the first mistake the complainant had made  but he stated that he had let other mistakes go. 

The respondent stated that there had been other mistakes involving the complainant mixing up amounts to be paid on utility bills by customers, but the respondent stated that these mistakes could be rectified once they were spotted early.  The respondent added that most of these types of mistakes were reversible if they were spotted and reported within 40 minutes.  The respondent stated that it was only when the complainant had made a mistake which involved the respondent losing €100 that felt this was the final straw and he had to let the complainant go.

The respondent stated that he  himself was not on the premises when the mistake had happened but  that he had called the complainant to a meeting as soon as he returned to work and discovered what had happened.   

The respondent stated that he raised the matter with the complainant and told him that he would have to let him go.   The complainant accepted  that he had made the mistake.

The respondent advised the hearing that he had told the complainant he would have to let him go but he stated that as it was a few weeks before Christmas he did not want to leave the complainant without money and so he told him he could leave there and then or if he wanted to he could stay on until the New year.   The respondent state that the complainant chose to stay on until the New year and thanked him.

 The respondent stated that the complainant did not show up for work the next day and at around 11 o clock the manager Ms. C saw a message on her phone from the complainant stating that he had decided not to come back to work and so she returned his call.   The complainant then asked to speak to the respondent Mr. K.    

Mr. K stated that the shop was busy and noisy at the time and there was a lot going on in the background he stated that Ms. C had called him form a distance to come to the phone.  Mr. K stated that he did not hear Ms. C ,make any such comment as that alleged by the complainant.   Mr. K added that he was not aware of any disability and had not been notified by the complainant of any disability.   

 I note that the complainant submits that he was discriminated against and harassed on grounds of disability.  The complainant disclosed his disability to the hearing but stated that he had not disclosed this disability to the respondent.     The respondent agreed that this was the case and that the complainant had not disclosed any disability to the respondent. 

The complainant went on to state that his claim was grounded on the fact that Ms. C had referred to him as autistic even though he does not have autism.   The complainant stated that he heard the reference ‘this chap has autism’ being said by Ms C in the background while he was on the other end of the phone waiting to speak to Mr. K.  The complainant asserts that this amounts to discrimination and/or harassment on grounds of a disability.

Having considered the totality the evidence adduced in relation to this matter I am satisfied from the evidence adduced that there was no less favourable treatment of the complainant on ground of his disability or on grounds of a disability imputed to him and that the complainant was not discriminated against or harassed on the disability ground,.  Accordingly, I declare this claim to be not well founded.

For the reasons set out above, I am satisfied that the complainant was not discriminated against or harassed on grounds of gender and or on grounds of disability by  the respondent contrary to the Acts and that the claims referred to the Commission are not well-founded.