April 01, 2022
Background
The Complainant submitted an Equality Claim, alleging that he had been subjected to racial discrimination at work.
Summary of Complainant’s Case
The Complainant commenced employment on 4th of December 2020 and alleged that his employment ended on the 5th of December 2020, arising from an exchange between the Complainant and the General Manager of the Hotel. It is alleged that the General Manager, during a busy function, addressed the Complainant as ‘Chico’. The Complainant was wearing a badge with his name on it and was taken aback at how he was addressed by the manager. He asked the Manager to refrain from calling him this name, but the Manager however referred to him as ‘Chico’ again. The Complainant didn’t know who to complain to and contacted the employment agency that had placed him in the role - however, he was not working as an agency worker and was placed with the Hotel as an employee. The next day when he started his shift, he was still very angry and found it hard not to talk to others about how he was treated. The Duty Manager asked him to go home because he was so upset. The Complainant stated that in addition to his immediate Manager discriminating against him when he referred to him as ‘Chico’, that the Duty Manager, by asking him to go home, was effectively penalizing him for opposing discrimination.
Summary of Respondent’s Case
The Manager apologised for the use of the term ‘Chico’ and stated that he called everybody this name and had no intention of offending or upsetting the Complainant. He noted that no insult was intended, and that term was used to refer generally to persons and was never intended to cause offence.
Findings and Conclusions
The Complainant felt he had been discriminated against because of his nationality and treated very unfairly, losing his employment due to this. The Respondent had a comprehensive and progressive policy concerning dignity and respect at work in place. The Complainant initially believed that he was sent home by the Duty Manager as a punishment and as a consequence he had lost potential earnings over the Christmas period. The Hotel and General Manager had offered to recompensate the Complainant for the loss of Christmas pay arising from this incident. The Manager apologised for the language used and accepted that it was an offensive and inappropriate remark. The Complainant was never taken off the Hotel books as an employee, so on the face of it, the Complainant was not dismissed. A very large number of employees appear to have been taken on for the busy Christmas period. After January 2021 the Pandemic meant that hotels were closed. Under oath at the hearing, the Duty Manager stated that he asked the Complainant to go home solely because he was so upset. The Complainant was paid for the shift and at no time did it cross the Duty Manager’s mind or anybody else’s in management that the Complainant was being dismissed. The Complainant, under oath also, accepted that he was very upset on the following day and distracted from doing his job. The Payroll Supervisor confirmed that the Complainant was not let go, was still on their books and noted that his last week of payment was week 49. The Complainant was named on the shift roster for weeks commencing 49, 50 and 51.
The Adjudicator noted that on the balance of probabilities, the evidence indicated that the Complainant was sent home not as a punishment but because he was profoundly upset arising from what had occurred on the previous shift. Based on the facts, the Adjudicator determined that the Complainant was not victimised for making a complaint against the General Manager – a dismissal was not established; the Complainants name appeared on the roster for the subsequent 2 weeks, and his employment was not terminated by being removed from payroll.
The Adjudicator noted that in this case, the Complainant had informed his Manager that the term ‘Chico’ was offensive to him, and asked his Manager not to call him this name. The Manager however, continued to refer to him as ‘Chico’ and continued to rely on the fact that he spoke to everyone like that, not just the Complainant. The continued use of the term ‘Chico’, when clearly informed that it was offensive, was determined by the Adjudicator to constitute Harassment. The Adjudicator did not accept that it was a defense for the Respondent to state that all employees were called Chico. Furthermore, the Adjudicator noted that on the balance of probabilities, the term ‘Chico’ would not have been used when referring to a person of Irish origin and therefore a prima facie case of racial discrimination had taken place.
Decision
It was determined that the Complainant was not dismissed arising from making a complaint concerning racial discrimination and for opposing discrimination, and therefore was not victimized. The Adjudicator found however, that the Complainant was racially discriminated against and the Complainant was awarded compensation of €12,500 for the effects of discrimination, which was noted as a proportionate and dissuasive amount.
Key Learnings for Employers
The Employment Equality Acts 1998–2015 outlaw discrimination in a wide range of employment and employment-related areas. In this instance, the discrimination was in relation to race which can include skin colour, nationality or ethnic origin.
Employers must take proactive steps to avoid discrimination which can include creating clearly written, up-to-date Equality and Dignity at Work Policies which are communicated to all staff, providing regular anti-discrimination training to staff, clearly communicating how staff can complain if discrimination occurs, and having an internal practice of regular one-to-one catch-ups between employees and their line managers, to help build positive working relationships.
Employers can mitigate against such claims by demonstrating that they took such reasonable steps to avoid discrimination. In this case, the Employer had a comprehensive and progressive policy concerning dignity and respect at work in place, but the conduct of the Manager raises the question as to whether appropriate training had been provided by the Respondent to their Line Managers.