The complainant was a Lithuanian national and was employed with the respondent from January 2009 until June 2010.  She alleges that a customer racially abused her on two occasions.   She did not report it to management as she felt she would lose her job.  After the second occasion the complainant complained to the Gardaí who contacted the customer and the respondent.  Following a meeting with the complainant the following morning the respondent transferred her to another of the respondent’s premises, a Supermacs.  After a short time the complainant was moved from the till in the second premises following an alleged complaint from a customer and was placed cooking burgers.  She was not rotated from that as all other staff were.  About 8 days later the complainant gave a week’s notice and finished working the following week.

The Equality Officer found that something untoward must have happened between the complainant and the customer to prompt the complainant to go to the Gardaí.  She found that the complainant had raised an inference of discrimination in relation to harassment and that a prima facie case had been established.  No further consideration is given to harassment nor to a rebuttal from the respondent in particular.  Therefore it is unclear whether the respondent had any policies in place.

The Equality Officer considered the Labour Court case Monaghan County Council v Roy Mackarel, EDA1213, and was satisfied that the complaint of discriminatory treatment (i.e. the allegations of racial abuse) had more than a trivial influence on the respondent’s decision to move the complainant.  She was satisfied that the complainant would not have been transferred but for the complaint.  She found that the complainant had established a prima facie case of victimisation which the respondent had failed to rebut.

The complainant resigned and claimed constructive discriminatory dismissal.  The Equality Officer considered two cases, An Employee and a Worker EED053 in which the Labour Court defined constructive dismissal and Berber v Dunnes Stores [2009] IESC 10 in respect of mutuality of obligation.  She found that the complainant was entitled to resign, that she had established a prima facie case of constructive discriminatory dismissal which the respondent failed to rebut.

The complainant was awarded €14,000 for discrimination and dismissal (approximately 6 months pay after employment of 18 months) and €20,000 for victimisation.

Why this case is of interest

• While the Decision contains no mention of the respondent having policies in place, (and we saw in DEC-E2013-167 above that without policies relating to harassment there is no defence) however even if policies were in place it is clear that there were no procedures in place.  One wonders how different it might have been had the complainant’s allegations been considered appropriately and the transfer defined as a protective or holding action until the matter could be addressed properly.
• The second alleged complaint at the till in Supermacs does not appear to have had any procedures applied other than the immediate transfer of the complainant to the grill.
• Recent equality caselaw has followed that of the EAT in respect of constructive dismissal in that complainants are expected to have exhausted all internal procedures.  The complainant in this case was relatively passive in that she did not make a complaint in the first place but without knowledge as to whether there were policies in place that she could actually exhaust this is only conjecture.
• The redress awarded was from a potential total of four years pay.  Victimisation claims are entitled to their own award and treated separately from treatment claims.  They are always treated seriously by the Tribunal as victimisation, if upheld, may be seen as obstructing an employee in exercising their statutory rights