Employers unable to rely on defence of taking reasonably practicable steps to prevent discriminatory conduct
Two recent decisions by the Workplace Relations Commission (WRC) serve as a reminder that employers can be responsible for discriminatory actions of their employees in the workplace.
The Equal Status Acts 2000 – 2018 (the Acts) prohibits discrimination in the provision of goods and services and covers nine grounds: gender, marital status, family status, age, disability, sexual orientation, race, religion and membership of the Traveller Community. The Acts provide that employers can be vicariously liable for acts of their employee in the course of their employment, whether or not it was done with the employer's knowledge or approval.
Importantly, the Acts provides a defence for employers where have taken reasonably practicable steps to prevent the alleged discriminatory conduct occurring.
In order to successfully rely on such a defence, at a minimum, employers should:
- Ensure that there are appropriate anti-discrimination policies in place that are regularly updated to include specific risks identified in the workplace;
- Effectively communicate such policies to all employees; and
- Provide sufficient training to ensure that employees clearly understand how discrimination could manifest in the workplace and the standard of conduct expected of them.
Member of the Traveller Community awarded €15,000 for discrimination when attempting to book a wedding venue at a hotel – ADJ-26881
Note: the hotel in this case has applied to the High Court to overturn this decision on the basis they were not notified of the hearing date (the High Court hearing is scheduled for May). In the meantime, the WRC's decision in this matter serves as a valuable reminder to employers that they can be held vicariously liable for discriminatory acts of their employees.
In this case, the Claimant, who was a member of the Traveller Community, was awarded €15,000 by the WRC as a result of the discrimination she suffered when attempting to book her wedding at a local hotel.
In July 2019, the Claimant initially contacted the hotel via email to enquire about booking her wedding. She received a response that was “positive and congratulatory in tone” and was invited to a wedding showcase event the following day.
However, once the Claimant provided her surname to the hotel's wedding coordinator, which she alleges would have identified her as a member of the Traveller Community, the hotel allegedly stopped engaging with her.
The following morning, the Claimant attended the hotel's wedding showcase and alleged that the wedding coordinator was "aloof and rushed" with her and did not bring her on a tour of the hotel as promised. The Claimant also alleged that another couple who attended the event had been given a full tour of the venue, including the honeymoon suite. She was not provided with any information on wedding packages as other attendees had been and her emails about possible wedding dates went unanswered. The Claimant stated that this treatment left her feeling "devastated, humiliated, and like a second-class citizen".
The WRC was satisfied that, in the absence of any rebuttal from the hotel (who did not attend the hearing), the disengagement by the hotel from discussions with the Claimant coincided with it becoming aware of the Claimant's surname, which would have identified her as a member of the Traveller Community. The WRC awarded the Claimant €15,000 in compensation for the effects of the discriminatory behaviour.
Racial discrimination in Starbucks café – ADJ-28487
Separately, a woman of Thai-Irish heritage was awarded €12,000 by the WRC as a result of the racial harassment she faced when ordering a beverage from a Starbucks café.
When the Starbucks employee asked for the complainant's name to write on the cup, the Claimant gave a shortened version of her name. The employee laughed at this and so the Claimant then began to spell her name. However, the employee interrupted her and said she would "draw the eyes". The employee then drew a pair of "slanty eyes" on the cup.
While the Claimant laughed in response, she gave evidence at the WRC hearing that she was "shocked and nervous" and did not know how to react. The Claimant's boyfriend complained on her behalf and the employee's supervisor apologised, tried to offer vouchers and subsequently organised cultural training for its staff.
The Respondent submitted that the drawing was not racially motivated and that it had a diverse workforce, including Asian colleagues. The Respondent also submitted that they could rely on the defence under section 42(3) of the Acts as it had an anti-harassment policy in place and provided training to its staff.
However, while the WRC accepted that the Respondent had a harassment policy and provided customer service training, it was not satisfied that the Respondent provided sufficient information/training to staff about the impact of drawings and pictures and how they might be perceived. The WRC stated that this incident stemmed from a well-established practice of writing on the cup to identify the customer which includes drawing on the cup which required care to ensure that the personalisation is appropriate. Consequently, the WRC held that the Respondent was not entitled to rely on this defence.
The WRC concluded that, while the employee's conduct may not have been racially motivated, this was clearly a racist incident as the visual depiction of the Claimant's Asian heritage had a degrading and humiliating effect on her.
Both of these cases highlight the importance of adequate and appropriate training and policy implementation by employers to prevent discrimination of actual or would-be customers in the course of an employee's duties. Otherwise, it may be difficult for employers to rely on the reasonably practicable steps defence.