Labour Court Database __________________________________________________________________________________ File Number: EED956 Case Number: EEO954 Section / Act: S27EE Parties: A COMPANY (Represented by THE IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - and - A WORKER;EILISH BARRY B.L.;INSTRUCTED BY THE EMPLOYMENT EQUALITY AGENCY |
Alleged unfair dismissal of the worker in contravention of Section 27 of the Employment Equality Act, 1977.
Recommendation:
5. The worker in this case complained to the Court under Section
27 of the Employment Equality act, 1977 that she had been
dismissed from her employment in contravention of Section 3(4) of
the Act.
Section 3(4) provides that a person shall be taken to discriminate
against an employee if he does not offer or afford to that person
the same terms of employment and working conditions as he affords
to another person where the circumstances in which both such
persons are employed are not materially different.
The worker was employed as an Accounts Assistant. Her employment
commenced on 13th February, 1995.
The contract contained the terms and conditions of employment.
There is no mention in the contract that the worker would be
required to wear a uniform.
On the worker's first day of work she was informed that she would
be required to wear a uniform; she was informed that all the
female staff were required to wear a uniform and that the male
staff were required to dress neatly with shirts and ties.
The worker refused to wear a uniform, and was ultimately
dismissed.
The Court investigated the complaint in accordance with Section 26
of the Act on 30th November, 1995, and heard submissions on behalf
of the Company and on behalf of the worker.
The Court is satisfied that the complaint is well-founded. There
was no suggestion made to the worker prior to her employment that
she would be required to wear a uniform, and when she had been
employed previously by the Company on a temporary basis, she had
not been so required. Her written contract made no reference to
dress or the wearing of a uniform. The Court is satisfied that
the worker was being employed under the same circumstances as
another worker (a male) who was working in the Accounts area, and
that he was not required to wear a uniform. Given the Company
profile, it would have been an implied condition of her employment
that she would dress in a neat and presentable manner, but the
Court finds no basis for concluding that because the other female
employees wore uniforms that it was a term of the worker's
employment that she do likewise.
The worker was required to wear a uniform simply because she was a
female worker, and regarded this as less favourable treatment by
reason of her sex. The Court is satisfied that the conditions of
employment afforded to the worker were not the same as those
afforded to a male employed in similar circumstances.
The Court therefore finds that the requirement was discrimination
against the worker within the meaning of the Act, and that there
was a contravention of Section 3(4) of the Act in relation to the
worker's dismissal.
The Court was urged to assess its compensation to the claimant
both in terms of the injury suffered by the claimant, but also in
terms of a suitable penalty against the employer.
The responsibility of the Court under Section 26(1)(d) is to
choose from a variety of remedies specified in the section. One
of these remedies is the payment of compensation. The Court is
entitled to order the employer concerned to pay to the dismissed
person "such compensation as the Court considers reasonable in the
circumstances". It is not the function of the Court to penalise a
Respondent in a vacuum; whatever compensation is awarded will be a
penalty against the Respondent. The Court must decide what amount
would be reasonable in the circumstances of the particular case to
compensate the victim of the discrimination. The compensation
must be "adequate" and not purely nominal, as was pointed out in
Case No. 14/83 of the European Court of Justice to which the Court
was referred.
In this case, the Court is satisfied that the complainant suffered
a loss of career opportunity at a crucial stage in her career, as
well as a considerable amount of anxiety and distress. In the
circumstances, the Court assesses reasonable compensation as the
sum of £4,000.
The Court will make an order directing the Company to pay the
worker an amount of £4,000 compensation.
Division: Ms Owens Mr Pierce Mr Walsh
Text of Document__________________________________________________________________
EED956 ORDER NO. EEO495
EMPLOYMENT EQUALITY ACT, 1977
PARTIES: A COMPANY
(REPRESENTED BY THE IRISH BUSINESS AND EMPLOYERS' CONFEDERATION)
AND
A WORKER
(REPRESENTED BY EILISH BARRY B.L.)
(INSTRUCTED BY THE EMPLOYMENT EQUALITY AGENCY)
SUBJECT:
1. Alleged unfair dismissal of the worker in contravention of
Section 27 of the Employment Equality Act, 1977.
BACKGROUND:
2. The Company manufactures and distributes ceramic bathroom
suites for sale in Ireland and abroad. It employs 90 workers.
The worker concerned commenced employment with the Company as an
accounts assistant on the 13th February, 1995. She was dismissed
on the 17th February, 1995 because she refused to wear a uniform.
On the 14th July, 1995 the Employment Equality Agency on behalf of
the worker referred a complaint to the Labour Court of
discriminatory dismissal of the worker by the Company contrary to
Sections 2(a) 3(1) 3(4) of the Employment Equality Act, 1977
alleging that she was being treated less favourably in relation to
her conditions of employment than male workers who did not have to
wear a uniform. The Company rejected the allegation of
discriminatory dismissal. The Court investigated the complaint on
the 30th November, 1995.
WORKER'S ARGUMENTS:
3. 1. When the worker applied for the post she sent in her
C.V. to the Company. She had previously worked there
in a temporary capacity and had enjoyed her work. The
Company was obviously happy with her work as the
financial controller contacted her by telephone and
offered her the job of Accounts Assistant. They
discussed the terms of the employment over the phone,
such as salary, but the worker was not informed of any
requirement to wear a uniform.
2. The claimant was delighted to accept the post as it was
permanent and offered plenty of potential. The Company
was small and she would be working with people in all
levels and sections. The employment was also close to
her home.
3. When the claimant commenced work on 13th February, 1995
the Financial Controller informed her that she would
have to get a uniform, even though no mention was made
of any requirement to wear a uniform in the Conditions
of Employment (details to Court). Only females in the
Company were obliged to wear a uniform. The three
Directors, the Purchaser, the Systems accountant and
the two sales representatives (all male) did not wear a
uniform. On the second day of her employment the
claimant explained to both the Financial Controller and
one the Directors that she did not wish to wear a
uniform. She was subsequently dismissed.
4. The claimant did not wish to wear a uniform because she
felt it was irksome and curtailed her freedom and that
it was demeaning of her professional status. She is
careful of her appearance and is always neat and
presentable She would never have worn clothes that
would have demeaned her own status or embarrassed her
employer or customers.
5. The Company discriminated against the claimant in
contravention of Sections 2(a) and 3(1) 3(4) of the
Act.
Section 2(a) states, discrimination shall be taken to
occur
'where by reason of his sex a person is treated less
favourably than a person of the other sex'
Section 3(1) provides that an employer shall not
discriminate against an employee in relation to conditions
of employment.
Section 3(4) provides that a person shall be taken to
discriminate if he does not afford to a person the same
terms of employment, the same working conditions and the
same treatment in relation to dismissals as he affords to
another person where the circumstances in which both such
persons are employed are not materially different".
6. There are numerous previous Labour Court/Equality
Service investigations where both the Court, and
Equality officers found that workers were discriminated
against because of their sex in relation to dress code
(EE19/1981, EE12/1993, EEO 7/93 refer).
7. The Employer did not and would not treat a man in the
way the claimant was treated. No male employee was
required to wear a uniform. No male employee had to
face the consequences of refusing to wear a uniform and
no male employee would be dismissed for refusing to
wear a uniform. A Uniform is a set of rules governing
dress. The imposition of a rule in itself constitutes
a detriment in that it entails a limitation of freedom
of action and an exposure to possible sanctions. The
claimant, who genuinely does not wish to wear a
uniform, is being denied an opportunity which she would
have were she a man. Because her preference is being
frustrated she has suffered less favourable treatment
than if she were a man. The claimant is denied a
chance to pursue perfectly normal behaviour.
8. The claimant is seeking payment of reasonable
compensation in respect of her discriminatory dismissal
and consequent loss of earnings and career opportunity.
She also seeks the award of a sum of money in respect
of the anxiety and distress caused by her
discriminatory dismissal.
COMPANY'S ARGUMENTS:
4. 1. The Company implements a dress code for image purposes.
There is a standard dress for males, consisting of
collar and tie. Female office staff are required to
wear a uniform, and they do so without complaint. The
Company has had no problems from its staff in relation
to dress code.
2. On the first day of her employment, Monday 13th
February, the claimant was approached about measurement
for a uniform by the person who liases with the
suppliers of uniforms to the Company. She refused to
be measured. The Financial Controller tried to get the
claimant to at least be measured and to discuss any
problem she had later. The claimant refused. On the
Tuesday and Wednesday the Financial Controller met with
the worker and tried to find a compromise that might
solve the problem. She showed no signs of compromise
and was not even interested in making alternative
suggestions to solve the problem. Her position was
that if she wore a uniform then she would be considered
as another secretary. Her attitude was one of non
co-operation, and implied superiority to other females
in the office (who wore a uniform). Management was of
the view that she would be very disruptive to the
administration team. The Company could not have an
employee, in a junior position, on the first day of her
employment trying to change a dress code which had
helped to enhance the corporate image of the Company.
The Company requested the claimant to discuss the
matter with her family before making a final decision.
On Thursday 16th February the Financial Controller
again spoke to the claimant. Her position had not
changed and she stated that the Company could not
dictate a dress code to an employee. The Financial
Controller advised the worker that he could not bend
the rules especially for her and would have no option
but to terminate her employment. The worker did not
respond.
On the 17th February the claimant was again spoken to
by the Financial Controller. As her attitude towards
wearing the uniform had not changed, he advised the
claimant that the Company was terminating her
employment with effect from that evening. She received
her statutory entitlements.
3. The Company did not breach the Employment Equality Act,
1977 in its dismissal of the worker. The claimant
never saw the issue of being required to wear a uniform
as one of sex discrimination, her reason in her own
words was
"she was not like the other girls and did not spend
four years in College to end up wearing a uniform".
She implied that her objection to wearing a uniform was
because she saw it as demeaning. Therefore it is
reasonable to conclude that she would have objected to
wearing a uniform whether or not such a requirement
applied to men. The action of the claimant was
unreasonable. She could have worked under protest and
processed her claim under the Employment Equality Act.
The stand she took with the Company, which had offered
her a permanent post, was not the approach any
reasonable employee would take in the first few days of
her employment. The Company acted reasonably. It
requested that she get measured and discuss the issue
later. She refused, and did not put forward any
compromise to resolve the difficulty. The Company had
no option but to terminate her employment. A male, who
had taken the same stand on any Company rule would have
been treated no differently.
ORDER:
5. The worker in this case complained to the Court under Section
27 of the Employment Equality act, 1977 that she had been
dismissed from her employment in contravention of Section 3(4) of
the Act.
Section 3(4) provides that a person shall be taken to discriminate
against an employee if he does not offer or afford to that person
the same terms of employment and working conditions as he affords
to another person where the circumstances in which both such
persons are employed are not materially different.
The worker was employed as an Accounts Assistant. Her employment
commenced on 13th February, 1995.
The contract contained the terms and conditions of employment.
There is no mention in the contract that the worker would be
required to wear a uniform.
On the worker's first day of work she was informed that she would
be required to wear a uniform; she was informed that all the
female staff were required to wear a uniform and that the male
staff were required to dress neatly with shirts and ties.
The worker refused to wear a uniform, and was ultimately
dismissed.
The Court investigated the complaint in accordance with Section 26
of the Act on 30th November, 1995, and heard submissions on behalf
of the Company and on behalf of the worker.
The Court is satisfied that the complaint is well-founded. There
was no suggestion made to the worker prior to her employment that
she would be required to wear a uniform, and when she had been
employed previously by the Company on a temporary basis, she had
not been so required. Her written contract made no reference to
dress or the wearing of a uniform. The Court is satisfied that
the worker was being employed under the same circumstances as
another worker (a male) who was working in the Accounts area, and
that he was not required to wear a uniform. Given the Company
profile, it would have been an implied condition of her employment
that she would dress in a neat and presentable manner, but the
Court finds no basis for concluding that because the other female
employees wore uniforms that it was a term of the worker's
employment that she do likewise.
The worker was required to wear a uniform simply because she was a
female worker, and regarded this as less favourable treatment by
reason of her sex. The Court is satisfied that the conditions of
employment afforded to the worker were not the same as those
afforded to a male employed in similar circumstances.
The Court therefore finds that the requirement was discrimination
against the worker within the meaning of the Act, and that there
was a contravention of Section 3(4) of the Act in relation to the
worker's dismissal.
The Court was urged to assess its compensation to the claimant
both in terms of the injury suffered by the claimant, but also in
terms of a suitable penalty against the employer.
The responsibility of the Court under Section 26(1)(d) is to
choose from a variety of remedies specified in the section. One
of these remedies is the payment of compensation. The Court is
entitled to order the employer concerned to pay to the dismissed
person "such compensation as the Court considers reasonable in the
circumstances". It is not the function of the Court to penalise a
Respondent in a vacuum; whatever compensation is awarded will be a
penalty against the Respondent. The Court must decide what amount
would be reasonable in the circumstances of the particular case to
compensate the victim of the discrimination. The compensation
must be "adequate" and not purely nominal, as was pointed out in
Case No. 14/83 of the European Court of Justice to which the Court
was referred.
In this case, the Court is satisfied that the complainant suffered
a loss of career opportunity at a crucial stage in her career, as
well as a considerable amount of anxiety and distress. In the
circumstances, the Court assesses reasonable compensation as the
sum of £4,000.
The Court will make an order directing the Company to pay the
worker an amount of £4,000 compensation.
~
Signed on behalf of the Labour Court
Evelyn Owens
18th December, 1995 -------------
T.O'D/U.S. Chairman