Key Learnings
The Employment Equality Acts prohibit an Employee being treated less favourable than another Employee is, has or would be treated in a comparable situation under nine defined grounds, of which one is membership of the travelling community.
In any proceedings, where 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 this Case, the Complainant proved the primary facts to support an inference of discrimination and these facts were found to be of sufficient significance so as to raise such a presumption. The evidence supported that the Respondent raised no issue with the Complainant’s performance until such a time as they became aware of his membership of the travelling community, shortly after which he was dismissed on the grounds of alleged incompetence – which he did not have an ability to contest or dispute.
This Case is also a reminder that employees with less than 12 month’s service can bring forward claims under the Employment Equality Acts.
Background
This is a Complaint seeking adjudication under section 77 of the Employment Equality Act. The Complainant commenced employment with the Respondent on 31st January 2020 as a Chef. His tenure of employment was brief, with the same being terminated on 10th February 2020, some 11 days following his commencement.
On 27th May 2020, the Complainant lodged the present complaint with the Commission, alleging that he was dismissed following the Respondent becoming aware that he is a member of the travelling community and that he suffered “discriminatory dismissal” on the grounds of “membership of the travelling community”.
The Respondent denied this allegation and submitted that the Complainant was dismissed during a “trial period” on the basis that he did not possess a sufficient level of skill to satisfactorily complete the tasks associated with the role.
Summary of Complainant’s Case
The Complainant outlined that he completed a course in Culinary Arts in Drogheda Institute of Further Education and that as part of the course, he worked as a chef in a busy hotel environment. Following the completion of this course, he worked for five months as a commis chef.
In January 2020, the Complainant applied for a role as commis chef with the Respondent. Shortly thereafter he was interviewed for the position by the Head Chef. The Complainant’s interview was successful, and he commenced employment the following day, 31st January 2020. The Complainant’s evidence was that he was informed that this day was to be considered a “trial day”, to assess his suitability for the role. After this date, the Head Chef stated that he was happy with the Complainant’s performance and that he intended to speak with the Managing Director of the business to confirm the Complainant’s ongoing employment.
The Complainant met the Managing Director on 4th February 2020. During the Complainant’s shift, the Managing Director approached him enquiring about their prior acquaintance. In the course of this conversation, it was confirmed that the Complainant had met the Managing Director following a social event some years ago. The Managing Director stated that he recalled the interaction, and that he recalled dropping the Complainant to his home address following the social function.
The Complainant was next rostered to work on 9th February 2020, however the premises was closed due to inclement weather and the shift was cancelled the previous day. On 9th February, the Head Chef informed the Complainant that there was no work for him, and that the Respondent would contact him when they needed him again. On the 10th February, the Complainant received a further message from the Head Chef. Here, he was informed that the Head Chef had spoken with the Managing Director and although they “liked his personality” they believed his lack of skill rendered him unsuitable for the role. The Complainant stated that this communication came as a complete shock to him as he had understood that he had passed his trial and that the Head Chef had previously communicated that they worked well together.
It was submitted that the Complainant had been dismissed on the grounds of his membership of the travelling community and that no issue was taken with the Complainant’s performance during the initial trial day or at any stage of his short employment. It was further submitted that the Respondent clearly had no difficulty with the Complainant’s experience, as he was successful at interview and that the issues only arose when the Managing Director recognised the Complainant as a member of the travelling community, after which he was dismissed. It was submitted that the conversation with the Managing Director of 4th February clearly identified him as such an individual, particularly in circumstances whereby the Managing Director stated that he recalled bringing the Complainant to his address.
Summary of Respondent’s Case
The Respondent denied the Complainant’s allegation. The Head Chef stated that he met the Complainant in January 2020. While this meeting took the form of a job interview, the Head Chef stated that the Complainant’s employment was dependent on him completing a trial period. He stated that this trial period did not have a specified period of time but that such trials are usually one week in duration. The Head Chef stated that although the Complainant completed his first day satisfactorily, this day was atypically quiet, and that he did not have a chance to observe the Complainant during a busy time. The Head Chef stated that the 4th of February was a more typically busy day, that the Complainant did not perform to a satisfactory standard on this date and that he had concerns regarding the Complainant’s ability to perform the role.
The Complainant was due to work the following Sunday 9th February 2020. However, due to severe weather conditions the premises was closed, and the Complainant was not required to work on that day. This period allowed the Head Chef to reflect on the Complainant’s suitability for the role and discuss the same with the Managing Director of the Respondent. Following a discussion in relation to the same, it was agreed that the Complainant was not suitable for the role, and that he had not completed his trial period. The following day, the Head Chef sent a text message to the Complainant advising that he had not passed his trial period and that his employment was terminated. He stated that the decision to dismiss was not his alone but was a joint decision between himself and the Managing Director.
The Head Chef denied that the Complainant had passed his trial period on the first day of his employment. He accepted that he informed the Complainant that the first day went well and that he did not raise any issue with the Complainant directly regarding his performance at any stage of his employment. On the advertisement for the role being opened to him, the Head Chef accepted that this stated that “as commis chef you will learn everything there is to know about Irish food and produce”. The Head Chef also acknowledged the difficulty in hiring chefs and accepted that he had difficulty in filling the role prior to the engagement of the Complainant.
The Managing Director stated that it was towards the end of shift on the date he observed the Complainant having difficulties in the kitchen that he spoke with the Complainant in a friendly manner, as many colleagues do at the end of shift. The Managing Director accepted that he identified the Complainant from a prior acquaintance and that he had dropped the Complainant to his address on that occasion. While the Managing Director initially denied that he was aware of the Complainant’s membership of the travelling community, he later accepted that he was aware of the same within the meaning of the Act. The Managing Director stated that he met with the Head Chef on 9th February 2020 and spoke about the Complainant’s continuing employment. On this date it was agreed that the Complainant did not possess the necessary skills to discharge the duties of the role. On foot of the same, it was agreed that the Complainant would be dismissed. The Managing Director stated that he would take his lead from the Head Chef regarding matters involving the kitchen. He denied that the dismissal was in anyway related to the discriminatory ground cited by the Complainant.
The Respondent denied that the Complainant had been dismissed on discriminatory grounds and submitted that in the catering industry it is common for new employees to be placed on a trial period pending their permanent engagement. It was noted that the Respondent’s clear evidence was that the Complainant did not complete the trial and that the Respondent was within their rights to dismiss on foot of the same. Having regard to the same, the Respondent submitted that the Complainant’s allegation that he was dismissed on discriminatory grounds was mere speculation, and as such his complaint should fail.
Findings and Conclusions
The Complainant is a member of travelling community and it is his position that he was dismissed on discriminatory grounds on 10th February 2020. In this regard, he submitted that he had already completed his trial period and that he had been informed that matters were progressing well. He submitted that this changed once the Respondent became aware of his membership of the travelling community and that he was dismissed shortly thereafter. In circumstances whereby no other issue was raised in the course of his employment, he submitted that this dismissal was due to discriminatory reasons.
The Complainant bears the initial burden of proof regarding the primary facts that may infer a presumption of discrimination. In the present case, it is accepted that the Complainant is member of the travelling community. It is agreed that the Complainant was successful at the initial interview for the role subject to a trial period. It is accepted that the Complainant completed the first day of this trial period and that the Head Chef indicated to him that they had worked well together on that date. Again, it is common case that the Complainant worked with the Head Chef during the busier day of 4th February without any issues being raised by the Chef, or the Managing Director, regarding his performance or capability. On that date the Managing Director accepted that he spoke with the Complainant towards the end of that shift. In the course of that conversation, the Managing Director stated he had met the Complainant on a prior occasion when he dropped him home after a social occasion held in the establishment he managed at the time.
The Adjudicator found that the Complainant has proven the primary facts which he may raise as inference of discrimination and that these facts are of sufficient significance so as to raise such a presumption. It is clear from the foregoing the Respondent raised no issue with the Complainant’s performance until such a time as they became aware of his membership of the travelling community, shortly after which he was dismissed on the grounds of alleged incompetence which he did not have an ability to contest or dispute.
The burden shifts to the Respondent to prove that there was no infringement of the principle of equal treatment. In this regard, the Adjudicator noted that the Respondent had stated that the Complainant was undertaking a trial period on the date of his termination. They submitted that an inherent characteristic of such a trial period is that an employee could be dismissed for a lack of suitability for the role. They submitted that this lack of suitability only became apparent on the busier day of 4th February and was discussed during the unexpected closure of 9th February. In support of the same, both the Head Chef and the Managing Director gave sworn testimony that the dismissal of the Complainant was for these reasons and was not influenced by his membership of the traveling community.
It was noted that following the Complainant’s first day of employment, he received a text message from the Head Chef stating that “I’ve texted the boss, waiting for his answer, I’ll let you know as soon as I have any more information”. This message certainly supports that Complainant’s position that the Head Chef was satisfied with his performance and had offered him the role, subject to the Managing Director’s approval. The next message arranged for the Complaint to attend another shift. This message was silent as to an ongoing trial. In light of the foregoing, the Adjudicator preferred the Complainant’s evidence that the trial period was for one day, and that he had successfully passed the same.
The Adjudicator found that the Respondent had not discharged the burden of proof imposed by virtue of Section 85(A).
Decision
Having regard to the totality of the evidence presented, it was the Adjudicator’s finding that the Complainant was discriminated against within the meaning of the Act and consequently his complaint is well-founded. The Complainant was awarded the sum of €4,160 in compensation.