FULL RECOMMENDATION
SECTION 27, EMPLOYMENT EQUALITY ACT, 1977 PARTIES : A COMPANY (REPRESENTED BY PAT POWER, WESTGATE SERVICES) - AND - A WORKER (REPRESENTED BY THE EMPLOYMENT EQUALITY AGENCY) DIVISION : Chairman: Ms Owens Employer Member: Mr Pierce Worker Member: Ms Ni Mhurchu |
1. Alleged unfair dismissal under Sections 26 and 27 of the Employment Equality Act, 1977.
BACKGROUND:
2. The worker commenced employment with the hotel in November, 1996. He was employed as a night porter. In March, 1997, the worker had his ear pierced and had an earring inserted.
Management claims that at his interview the terms of employment pertaining to "Front of House" employees was explained to him, that it was outlined to the worker that the hotel was aiming for a 4/5 star rating and that a strict dress code would apply to all employees coming into direct contact with guests. Management did allow jewellery to be worn, but only where it was considered conservative. This criteria applied to both male and female staff.
The worker claims that a dress code was not outlined to him. He was instructed to be neat and tidy in appearance, to wear a uniform and to be punctual. He claims that he complied with these conditions. The worker alleges that he was dismissed on the 24th March, 1997.
On the 9th July, 1997, the Employment Equality Agency on behalf of the worker, referred a complaint of discrimination to the Labour Court under Sections 2 and 3 of the Employment Equality Act, 1977 that the worker was dismissed from his employment for wearing an earring.
Management rejects the claim that the worker was dismissed. The Court investigated the complaint on the 17th December, 1997.
WORKER'S ARGUMENTS:
3. 1. The worker claims that he was dismissed from his employment because he wore an earring.
2. The worker offered to cover the earring with a plaster but this offer was rejected by management.
3. The claimant wore a uniform and was always neat and tidy in his appearance.
4. A copy of Recommendation EE9/94, in which the prohibition of earrings for male employees was found to be discriminatory on gender grounds under the Employment Equality Act, 1977 was given to the Company by the Employment Equality Agency.
5. Section 2(a) of the 1977 Act states that discrimination occurs "where by reasons of his sex one person is treated less favourably than a person of the other sex". It is claimed that the worker was treated less favourably on grounds of gender as female employees were permitted to wear earrings while the claimant was not, because he is a man.
6. It is further claimed that the worker's treatment also contravened Section 3(4) of the Employment Equality Act, 1977.
MANAGEMENT'S ARGUMENT:
4. 1. Management rejects the claim that the worker was dismissed. He left of his own volition.
2. It was outlined to the worker at his interview that a strict dress code would apply to all employees coming into contact with guests. All such employees were expected to be neat and tidy. Jewellery could be worn if considered "conservative". This criteria applied to both male and female employees.
3. The worker accepted the strict terms of dress code which applied to "Front of House" employees.
4. The claimant was informed that he could resume his duties if he was prepared to return to the status-quo which existed at the time of his appointment, and in this way, observe the terms of his employment.
5. The worker was subsequently employed by a competitor hotel. He commenced this employment without wearing the earring.
ORDER:
This case falls to be determined under Section 26 & Section 27 of Employment Equality Act, of 1977; the claim being made that the Employer discriminated against the claimantcontrary to Section 3(4) of the Act.
On the evidence submitted the Court is satisfied that the Company did not have a discriminatory policy with regard to the wearing of jewellery. The wearing of stud earring(s) by the male employees was permitted in general. This dispute arose because of the size of the earring the claimant wore. There was conflicting evidence as to the size. In addition the Company claimed there was not dismissal but that the claimant walked off the job. The Company position is sustained in that a P45 was issued only at the request of the claimant. The Court is satisfied that on the night in question the claimant was upset when challenged about the earring which led him to leave his post. This can be considered as constructive dismissal.
The Court had difficulty in establishing the exact happenings that night as no direct oral evidence was submitted by the Company. It does appear to the Court that the Company could have dealt with the situation with more sensitivity. The claimant for his part contributed to the dismissal by not removing the stud, at least temporarily, to allow the issue be resolved calmly by both parties.
The evidence submitted as to the size of the earring was contradictory. From the description given it was in the nature of a stud but larger.
On balance the Court is satisfied that discrimination occurred resulting in a constructive dismissal. The Court is also satisfied that the claimant contributed to the dismissal and accordingly awards nominal compensation of £400 for the distress caused.
Signed on behalf of the Labour Court
Evelyn Owens
8th January, 1998______________________
L.W./U.S.Chairman
NOTE
Enquiries concerning this Order should be addressed to Larry Wisely, Court Secretary.