HOGAN
-V-
JEAN SCENE IRELAND LIMITED
1. DISPUTE
This dispute involves a claim by Ms. Danielle Hogan that she was dismissed by Jean Scene Ireland Limited in circumstances amounting to discrimination on grounds of gender, in terms of section 6 of the Employment Equality Acts 1998 and 2004 and contrary to section 77 of those Acts, when it terminated her employment in June, 2005.
2. BACKGROUND
2.1 The complainant commenced employment with the respondent as a Sales Assistant at its outlet in Jervis Street, Dublin, in April, 2005. She states that she informed the Assistant Store Manager of her pregnancy in late May, 2005 and two weeks later her employment was terminated. She asserts that this constitutes unlawful discrimination of her on grounds of gender contrary to the Employment Equality Acts, 1998 and 2004. The respondent accepts that it terminated the complainant's employment on 17 June, 2005 but rejects that it was connected to her pregnancy. It asserts that it did so because of her poor performance and behaviour, in particular her attitude toward her Line Manager and her failure to comply with the company uniform policy.
2.2 The complainant referred a complaint under the Employment Equality Acts, 1998 and 2004 to the Equality Tribunal on 21 June, 2005. In accordance with her powers under the Acts the Director delegated the complaint to Mr. Vivian Jackson, Equality Officer for investigation and decision and for the exercise of other relevant functions under Part VII of the Acts. Submissions were received from both parties and a Hearing of the complaint took place on 31 July, 2007. A number of issues emerged at the Hearing which required clarification and gave rise to correspondence subsequent to the Hearing. The final correspondence was received by the Equality Officer in mid-October, 2007.
3. SUMMARY OF COMPLAINANT'S CASE
3.1 The complainant commenced employment with the respondent as a Sales Assistant at its outlet in Jervis Street, Dublin, in April, 2005. She states that from the beginning of her employment she was assigned around 30-35 hours per week. She adds that she did not sign any contract of employment but understood that she had permanent status. She states that she was not informed she was on a probationary period of three months, although she was informed (by Asst. Manager Ms. S) that the respondent operated a dress code - employees must wear a black top. She states she informed Ms. S on 27 May, 2005 that she was pregnant as she had to attend for a hospital visit on 31 May. She adds that she visited the store on Friday 3 June, 2005 and was informed she was rostered for 20 hours the following week. She states that she considered this to be a considerable reduction over previous weeks and she queried it with the new Store Manager, Ms. M. The complainant states that this was the first occasion she had met Ms. M. (she was only recently appointed at that time) and whilst the complainant was upset about the situation she denies that she was abusive to her.
3.2 The complainant states that she arrived for work on Tuesday 7 June, 2005. She adds that she was wearing a white top under a black cardigan and was called to the staff canteen by Ms. M where she reprimanded her (the complainant) for arriving to work without the correct uniform. The complainant states she informed Ms. M that none of her other tops fit her because she was pregnant and told her she would purchase a black top at lunchtime. She adds that this was not acceptable to Ms. M and she was subsequently given a verbal warning for not wearing the correct uniform. The complainant accepts that she signed the Store Diary accepting the verbal warning. She adds however that she does not recall been given a verbal warning for her alleged altercation with Ms. M the previous Friday and states that she is "fairly sure" that warning was not in the Diary when she signed it. The complainant adds that she was never spoken to or reprimanded by a Line Manager for any matter prior to that day. She states that she went about her work for the remainder of the day and denies that she was insolent or cheeky to Ms. M, either that day or for the remainder of the week.
3.3 The complainant states that about a week later Ms. M informed her she was terminating her employment and was giving her a weeks' notice. The complainant adds that when she asked why Ms. M told her "she was a three month trial" and that the "Area Manager was sacking her". The complainant states that she subsequently spoke with the Area Manager (Ms. C) on the telephone - Ms. M phoned her - and accepts that she was extremely upset but denies that she was abusive to her. She adds that the respondent dismissed her within a short period of becoming aware of her pregnancy and contends therefore that the termination of her employment constitutes unlawful discrimination of her contrary to the Acts as it is based on the fact that she was pregnant at that time.
4. SUMMARY OF RESPONDENT'S CASE
4.1 The respondent rejects the complainant's assertion that her dismissal was in any way connected with her pregnancy. It states that the complainant was a permanent employee and was employed on a 3 month probationary period. It cannot confirm whether or not the complainant signed a contract of employment or was given a copy of the respondent's disciplinary and grievance procedure. The respondent states that the complainant was given two verbal warnings- one for foul and abusive language to Ms. M and the other for reporting to work without the correct uniform. It adds Ms. M was only recently assigned to the store on 3 June, 2005 and met the complainant for the first time that day. It states that the rotas for the following week had been prepared and whilst the complainant's hours were less than previous weeks she was rostered for 19 hours that week - a week which included a public holiday. The respondent states that the complainant visited the store on 3 June, 2005 and when told her hours for the next week she became abusive to Ms. M before eventually leaving the store. It adds that she arrived for work the following Tuesday wearing a top which did not comply with company policy. The respondent states that when challenged by Ms. M the complainant stated "it wasn't her fault she was pregnant and had nothing to wear". It states that this was the first time Ms. M was aware the complainant was pregnant. The respondent states that the complainant was reprimanded by Ms. M and given two verbal warnings - one for verbal abuse and the other for not complying with the company dress code. The respondent states that Ms. M set out the nature of these warnings in the Store Diary and both she and the complainant signed the Diary below the entries. It adds that the complainant continued to be rude and impolite to Ms. M for the remainder of that day and that her behaviour did not improve for the remainder of the week
4.2 The respondent states that consequently, the decision was taken to terminate the complainant's employment - this decision was take by Ms. M initially and was approved by Ms. C. It adds that Ms. M gave the complainant a week's notice on 14 June, 2005 and she (the complainant) subsequently spoke with Ms. C on the telephone for several minutes in an aggressive and abusive manner. It adds that the complainant continued to be abusive to Ms. M after this telephone conversation and Ms. M eventually asked that she leave the store. In summary the respondent submits that the complainant's employment was terminated because of her attitude/language toward her Line Manager and her failure to comply with the company uniform policy and denies that the complainant's pregnancy had anything to do with the decision.
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 The issue for decision by me is whether or not the complainant was dismissed by the respondent in circumstances amounting to discrimination, on grounds of gender, in terms of section 6 of the Acts and contrary to section 77 of the Acts when it terminated her employment in June, 2005. In reaching my Decision I have taken into consideration all of the submissions, oral and written, made to me by the parties as well as the evidence given by the witnesses at the Hearing.
5.2 Section 85A of the Employment Equality Acts 1998 and 2004 sets out the burden of proof which applies to claim of discrimination. It requires the complainant to establish, in the first instance, facts upon which she can rely in asserting that she suffered discriminatory treatment. It is only where those facts have been established and are regarded by an Equality Officer as sufficient to raise an inference of such treatment that the onus shifts to the respondent to rebut the inference of discrimination raised. The issue in the instant case is not one of unfair dismissal but discriminatory dismissal and the complainant must establish facts from which it can be inferred that her dismissal was influenced in any way whatsoever, by her pregnancy.
5.3 The complainant states that the respondent never raised any issues with her about her behaviour or performance from the beginning of her employment until the events in early June, 2005 (a period of two months) and the respondent accepted this in the course of the Hearing. It is clear therefore that the first occasion on which the respondent felt it necessary to invoke its disciplinary code against the complainant was following the alleged incident between her and Ms. M in the store on 3 June, 2005. The respondent furnished the Tribunal with the rotas for the complainant and her colleagues from start April, 2005 to week commencing 7 June, 2005. I am satisfied that the hours rostered to her that week represents a reduction of around ten hours on the hours she had been rostered in respect of the preceding weeks and that this was a source of some annoyance to her. However, I am satisfied, on balance, that the treatment of the complainant does not constitute less favourable treatment of her contrary to the Acts as Ms. M was not aware of the complainant's pregnancy at the time the roster for that week was prepared. Both parties agree that there was a discussion between Ms. M, the newly appointed Store Manager and the complainant about this matter on 3 June, 2005 and I am satisfied, on balance, that this conversation was at the least heated in tone and content. The respondent (Ms. M) subsequently decided that the behaviour of the complainant that day warranted a formal sanction and she gave the complainant a verbal warning. Without making a decision on the appropriateness or other otherwise of this sanction - the complaint is not one of unfair dismissal - it appears that such a response would be covered by the respondent's disciplinary and grievance procedure (a copy of which was submitted to the Tribunal). I am satisfied therefore that the behaviour of Ms. M does not constitute discrimination of the complainant on grounds of gender. It is noteworthy that the complainant asserts she never received a copy of the disciplinary procedure and the respondent cannot offer any confirmation that she received same. In addition, I note that the sample contract of employment submitted by the respondent - which it contends would have been signed by the complainant if she signed any such document - states at paragraph 12 that an employee shall be furnished with a copy of the respondent's disciplinary and grievance Procedure on successful completion of that employee's period of probation. The complainant did not complete her period of probation and I am therefore satisfied, on balance, that she did not receive a copy of the procedures. In the interest of completeness I feel it necessary to say the fact that the respondent considered the complainant to be on a three month probation period is irrelevant, as there are no minimum service requirements (as required under unfair dismissal legislation) to be met to avail of protection under the employment equality legislation.
5.4 It is common case between the parties that the complainant received a verbal warning from Ms. M for reporting for duty on 7 June, 2005 without the correct uniform. Whilst the respondent's Handbook does not specify what the company uniform is, it is agreed between the parties that it included a black top. The complainant reported for duty on 7 June, 2005 wearing a black cardigan with a white, or white striped, top underneath. The complainant contends that when Ms. M raised the matter with her she told Ms. M that none of her clothes fit her because she was pregnant. Ms. M's statement (she was not available to attend the Hearing and give evidence) of what the complainant said at this meeting "it wasn't her fault she was pregnant and had nothing to wear" largely confirms the complainant's version of that discussion. I am satisfied therefore that in reaching her decision to issue the complainant with a verbal warning for non compliance with the respondent dress code, Ms. M was fully aware that the complainant's pregnancy was a factor for her failure in that regard.
5.5 Article 2 of the EU Directive amending Council Directive 76/207/EEC on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion and working conditions provides that the principle of equal treatment means there shall be no direct or indirect discrimination whatsoever on grounds of gender. This Directive was transposed into Irish law by the Equality Act, 2004 and this Tribunal must interpret the Act in light of the wording and purpose of the Directive. It is also well established jurisprudence of the European Court of Justice that less favourable treatment on grounds of pregnancy is prima facie direct discrimination on grounds of gender. Thus the respondent must prove, on the balance of probabilities, that there was no discrimination whatsoever in its decision to terminate the complainant's employment. In Nevins, Murphy and Flood v Portroe Stevedores the Labour Court adopted the rationale set out by the House of Lords in Nagarajan v London Regional Transport as follows "It must be borne in mind that the proscribed reason need not be the sole or even the principal reason for the conduct impugned; it is enough that it is a contributing cause in the sense of being a 'significant influence'". It is clear that in the course of making the decision to issue the complainant with a verbal warning for non-compliance with the company dress code, Ms. M was aware that the complainant's pregnancy was a factor in her failure to wear a black top that day. This decision was therefore tainted by discrimination on grounds of gender. The respondent subsequently took this verbal warning into account in reaching the decision to terminate the complainant's employment. It follows therefore that the warning constitutes a significant influence in that decision and the decision is therefore tainted by discrimination on grounds of gender. In light of my comments above I find that the complainant was dismissed by the respondent in circumstances amounting to discrimination, on grounds of gender, in terms of section 6 of the Acts and contrary to section 77 of the Employment Equality Acts, 1998 and 2004. In the interests of completeness I feel I must state that (i) the respondent furnished no evidence whatsoever that the complainant continued to be insolent during the days following 7 June, 2005, (ii) the possibility that the complainant may have been abusive to Ms. C, the Area Manager (and I make no finding of fact on that point) in the course of the telephone conversation following Ms. M giving her notice of termination of her employment, has no bearing on the outcome of this Decision because the respondent had already reached its flawed decision to dismiss her at that time.
6. DECISION OF THE EQUALITY OFFICER.
I find that the complainant was dismissed by the respondent in circumstances amounting to discrimination, on grounds of gender, in terms of section 6 of the Acts and contrary to section 77 of the Employment Equality Acts, 1998 and 2004. I must now consider the appropriate level of redress in the circumstances. It was accepted by the respondent that it had no reason to discipline the complainant at any time during her employment other than the incidents in June, 2005. I am therefore satisfied that the complainant had a legitimate expectation to remain in its employment at least until the beginning of her maternity leave - end September, 2005. I am conscious of the need to provide redress which is effective, proportionate and dissuasive. Taking all the circumstances of the case into account I consider it reasonable the redress is measured at €6,000 and in accordance with my powers under section 82 of the Employment Equality Acts, 1998-2007 I order the respondent to pay the complainant that amount. The award includes an amount of €3,000 in respect of loss of earnings and the remaining €3,000 represents compensation for the effects of the distress suffered by the complainant as a result of the discrimination.
____________________________
Vivian Jackson
Equality Officer
12 November, 2007