Labour Court Database __________________________________________________________________________________ File Number: EED906 Case Number: EEO906 Section / Act: S27EE Parties: GROSVENOR SERVICE STATION - and - A WORKER;THE EMPLOYMENT EQUALITY AGENCY |
Dispute concerning alleged discriminatory dismissal in contravention of Section 3(4) of the Employment Equality Act, 1977 in terms of Section 2(a) of that Act.
Recommendation:
7. The questions which the Court must address are:-
- Did the proprietor impose on the complainant - an
inessential and discriminatory requirement regarding mode
of dress.
- if he did so, was her refusal to comply with it the cause
of her dismissal.
It was not disputed that the question of dress was a matter of
contention between the worker and the proprietor and that it was
raised initially by the proprietor.
However there was no suggestion of coercion by way of threatened
dismissal or other disciplinary action and there was no evidence
that the proprietor sought to do more than implement ESSO policy
which, while indicating a preference for, had no mandatory
requirement regarding the wearing of skirts. The issue was not
raised again by the proprietor after the initial discussion and
might well have died but for the insistence of the worker in
raising it again.
Based on the evidence submitted, the Court does not find the claim
that the proprietor imposed on the worker a discriminatory
requirement in relation to dress is well founded. Accordingly the
Court does not accept that she was dismissed for not conforming to
such a requirement and holds that her dismissal did not contravene
Section 3 of the Employment Equality Act, 1977 in terms of Section
2(a)
Division: CHAIRMAN Mr McHenry Ms Ni Mhurchu
Text of Document__________________________________________________________________
EED906 ORDER NO. EEO690
EMPLOYMENT EQUALITY ACT, 1977
SECTION 27
PARTIES: GROSVENOR SERVICE STATION
(REPRESENTED BY SHANNONS, SOLICITORS)
and
A WORKER
(REPRESENTED BY THE EMPLOYMENT EQUALITY AGENCY)
SUBJECT:
1. Dispute concerning alleged discriminatory dismissal in
contravention of Section 3(4) of the Employment Equality Act, 1977
in terms of Section 2(a) of that Act.
BACKGROUND:
2. The worker commenced employment on the 2nd September, 1989
with Grosvenor Service Station, which is an Esso Station, as a
part-time console operator. The Company employs both male and
female operators. The function of a console operator is to work
as a cashier dealing with cash, cheques, credit cards for the sale
of petrol, oil, cigarettes, sweets, newspapers etc. The turnover
per shift is approximately #3,000 and a shift sheet is completed
by the operator at the end of shift. The worker's hours of duty
were from 8.00 a.m. to 4.00 p.m. Saturday and Sunday. Console
operators were not allowed to leave their place of work unless
relieved.
3. The worker was given forty eight hours training and was given
a uniform to wear which consisted of a jumper, blouse and a
cravat, she claims she was also requested by the employer to wear
a dark skirt. The uniform of the male operators consisted of
shirt, tie, jumper and slacks. Male operators regularly wore
jeans. The worker concerned generally wore a skirt to work but on
three occasions wore trousers/jeans. On the first occasion the
employer made no comment. On the second occasion her employer
suggested that she should wear a skirt because it looked better
and was in keeping with the policy of Esso Limited. The worker
alleges that she protested against the employer's suggestion that
she wear a skirt as part of her uniform given that male operators
regularly wore jeans. She wore trousers/jeans to work on the 28th
October, 1989. The employer made no comment until she raised the
matter by informing him that she would wear the official uniform
but was entitled to wear whatever she choose (skirt or
trousers/jeans) with it. She stated that he replied that she was
not so entitled and that he then offered to buy two new skirts for
her. The worker refused this offer.
4. She was due to report for duty on Saturday 4th November, 1989.
On the 2nd November she received a telephone call from her
employer requesting that she report to the service station on the
3rd November, 1989. When she reported as requested the worker
alleges that she was dismissed from her job.
5. The Employment Equality Agency referred a complaint on behalf
of the worker to the Labour Court under Section 27 of the
Employment Equality Act, 1977, alleging that her dismissal from
her employment contravened Section 3(4) of the Employment Equality
Act, 1977 in terms of Section 2(a) of that Act. The Court
investigated the complaint on the 8th October, 1990.
WORKER'S ARGUMENTS:
6. 1. Prior to the worker's conversation with the employer on
the 3rd November, 1989, he had not expressed any official
complaint about the performance of her duties. Indeed he
commented to the claimant's brother, that he was very pleased
with her performance. (The worker's brother was a former
employee at the service station).
2. It is submitted that it takes a considerable amount of
practical experience before a new console operator can become
fully competent in completing the shift sheets and the worker
accepts that she did have difficulties initially in completing
these sheets. The employer advised her on the completion of
the paperwork and on dealings with customers. At no stage did
he suggest that her job would be terminated because of any
difficulties she was having.
3. On the contrary, the worker alleges that the employer
having regularly checked her paperwork would comment on how it
was improving and, towards the end of the claimant's
employment, he said she was improving steadily and that in a
few weeks there would no problems. The worker states that
other new employees had similar problems.
4. In support of the worker's complaint the Court is also
asked to consider the following:
- In a letter dated 5th March, 1990 (details supplied
to the Court) ESSO Ireland Limited confirmed to the
Agency that the uniform for female employees of
service stations 'is a blouse, cravat, jumper and
skirt. Women are not enforced to wear a skirt rather
than slacks but are not encouraged to do so' (sic).
It is submitted that the fact that this is the policy
on required dress for women in Esso stations supports
the worker's version of events.
5. The employer's alleged offer to buy the worker two skirts
on 28th October, 1989 suggests that he envisaged her
continuing in employment despite any initial difficulties she
may have had and contradicts an intention to dismiss her a few
days later allegedly because of those difficulties.
6. It is also submitted that the paperwork is a very small
part of a console operator's work and, further, that the
difficulties experienced by the worker were in relation to
balancing of shift sheets. It is difficult to understand why
the worker would be dismissed after such a short time for
allegedly failing to balance the shift sheets, particularly
given that other employees had had similar problems.
7. The worker was not dismissed from her employment because
of poor job performance but because she did not fit the
employer's stereotype of what was appropriate dress for female
employees. She was subjected to a more restrictive
instruction regarding dress than were male employees doing the
same work: male employees were allowed to wear denim jeans,
the worker was not. As a consequence of her refusal to comply
with this discriminatory restriction, she was dismissed from
her employment. It is submitted that her dismissal therefore
contravened Section 3(4) of the 1977 Employment Equality Act
in terms of Section 2(a).
COMPANY'S ARGUMENTS:
7. 1. The worker concerned during the period of her employment
failed to meet the requirements of the position and she
specifically failed to balance her shift sheets on a number of
occasions.
2. In a period of eighteen working days her cash total was
incorrect with a significant shortage registered (details
supplied to the Court). There were six or seven other workers
employed by the service station and they did not experience
this difficulty with cash balances. The worker's honesty
however was never in question.
3. The amount of the discrepancies and the consistency of her
inaccuracies along with a less than satisfactory customer
relationship made her overall performance unacceptable. The
employer subsequent to the hearing, submitted at the Court's
request, comparative performance figures for other staff. The
employer claimed that these figures support the contention of
an unsatisfactory performance by the worker.
4. The employer did not insist that the worker concerned wear
a skirt as part of her uniform but in line with Esso's policy
he encouraged her to wear a skirt. He was surprised at her
statement on the 28th October that she was going to wear
trousers if she wished and as a conciliatory gesture offered
to buy her two skirts. The employer stated that he had made
the decision to dismiss the worker prior to the discussion on
dress which she intitiated on 28th October, 1983. His
question regarding the provision of skirts was asked simply to
ascertain her re action to a possible compromise and was put
out of curiosity.
5. The employer at all times encouraged the worker in her job
and explained to her ways of coping with her shift sheet. He
was anxious that she should succeed at her job as two of her
brothers had previously worked at the station and had given
good service. Unfortunately prior to the worker's dismissal
the employer had come to the conclusion, in his long
experience of other operators, that the worker was not going
to be suitable for employment as a console operator and
decided to terminate the worker's employment.
6. The issue of her dress or whether she wore trousers or
jeans was never a factor in influencing the employer in his
decision to dismiss the worker. It was purely her inability
to come to terms with the shift sheet and the unacceptable
level of daily discrepancies.
ORDER:
7. The questions which the Court must address are:-
- Did the proprietor impose on the complainant - an
inessential and discriminatory requirement regarding mode
of dress?
- if he did so, was her refusal to comply with it the cause
of her dismissal?
It was not disputed that the question of dress was a matter of
contention between the worker and the proprietor and that it was
raised initially by the proprietor.
However there was no suggestion of coercion by way of threatened
dismissal or other disciplinary action and there was no evidence
that the proprietor sought to do more than implement ESSO policy
which, while indicating a preference for, had no mandatory
requirement regarding the wearing of skirts. The issue was not
raised again by the proprietor after the initial discussion and
might well have died but for the insistence of the worker in
raising it again.
Based on the evidence submitted, the Court does not find the claim
that the proprietor imposed on the worker a discriminatory
requirement in relation to dress is well founded. Accordingly the
Court does not accept that she was dismissed for not conforming to
such a requirement and holds that her dismissal did not contravene
Section 3 of the Employment Equality Act, 1977 in terms of Section
2(a)
~
Signed on behalf of the Labour Court
Kevin Heffernan
_______________________
16th January, 1991 Chairman.
T.O'D./J.C.