EQUALITY OFFICER DECISION NO: DEC-E/2009/091
PARTIES
CRUISE
(REPRESENTED BY THE EQUALITY AUTHORITY)
AND
NAIL ZONE LTD.
(REPRESENTED BY MR. GRAHAM QUINN BL
INSTRUCTED BY MICHAEL J. KENNEDY & CO. SOLICITORS)
File No: EE/2006/325
Date of issue: 15 October, 2009
Headnotes: Employment Equality Acts, 1998 & 2004, section 6,8, 14 and 77 - discriminatory treatment - discriminatory dismissal -harassment -gender - pregnancy & maternity - burden of proof
1. DISPUTE
This dispute involves a claim by Ms. Regina Cruise that she was (i) discriminated against by Nail Zone Ltd. (the respondent) on grounds of gender, in terms of section 6(2) of the Employment Equality Acts 1998 and 2004 and contrary to section 8 of those Acts in relation to her conditions of employment and (ii) harassed by the respondent on grounds of gender, in terms of section 6(2) of the Employment Equality Acts 1998 and 2004 and contrary to section 14 A of those Acts when she notified her employer she was pregnant in January, 2006. The complainant also contends that she was dismissed in circumstances amounting to discrimination on grounds of gender, in terms of section 6(2) of the Employment Equality Acts 1998 and 2004 and contrary to section 77 of those Acts when her maternity leave finished in September, 2006.
2. BACKGROUND
2.1 The complainant commenced employment with the respondent as a nail technician in February, 2005. She states that she received no written terms or conditions of employment and that she was a full-time employee working Tuesday-Saturday each week, covering an occasional Sunday and her day off was Monday. She states that her working relationship with the respondent was good until she informed it of her pregnancy in January, 2006. The complainant contends that her employer immediately attempted to change her day off so as to coincide with her ante-natal appointments and thereafter harassed and treated her in a discriminatory fashion forcing her to commence her maternity leave early on medical advice. The complainant adds that due to this treatment she felt it was impossible for her to return to work and she resigned from her position on 31 August, 2006 and submits that this constitutes constructive discriminatory dismissal of her contrary to the Acts. The respondent rejects the complainant's assertions in their entirety.
2.2 The complainant referred a complaint under the Employment Equality Acts, 1998 and 2004 to the Equality Tribunal on 13 September, 2006. 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. My investigation of the complaint commenced on 15 January, 2009, the date the complaint was delegated to me. Submissions were filed and exchanged and a Hearing on the complaint took place on 18 July, 2009.
3. SUMMARY OF COMPLAINANT'S CASE
3.1 The complainant states that she commenced employment with the respondent as a nail technician in February, 2005. She states that she received no written terms or conditions of employment and that her working week was Tuesday- Thursday 9am-6:30pm, Friday 11am-8pm and Saturday 10am-6pm. She adds she was required to work on Sunday but that this was rare and was done in rotation and that her day off was Monday. She states that her working relationship with the respondent was friendly although some disagreement arose in August, 2005 over changes to her working roster and when she raised this with the proprietor (Ms. Jennifer Lloyd) it was agreed that in future she would receive two weeks' notice of any change to her working pattern, although she accepts this is not always possible in unforeseen circumstances.
3.2 The complainant states that she informed Ms. Jennifer Lloyd of her pregnancy in end December, 2005. She adds that she attended her first ante-natal appointment on 24 January, 2006 and was advised to rest due to high blood pressure. Her partner phoned the respondent and advised Ms. Lloyd of the situation and that she would was unable to return to work that day. The complainant states that she received a phone call from Ms. Lloyd later that day asking her if she would be returning to work the next day and enquiring when her next hospital appointment was. The complainant further states that she informed Ms. Lloyd she would be returning to work the following day and that her next appointment was Tuesday 21 February. The complainant contends that when she returned to work the next morning she noticed the roster had been changed to show her day off as Tuesday 21 February so to coincide with her hospital visit. She adds that she contacted the other proprietor of the respondent (Ms. Louise Lloyd) to enquire as to why her day off had been changed in such a fashion. The complainant states that Ms. Louise Lloyd told her she was entitled to change her day of and after some discussion the respondent agreed to open up the shop herself on that day if necessary. The complainant states that she (the complainant) altered the roster back to reflect her day off as Monday 20 February.
3.3 The complainant states that on 16 February, 2006 she noticed the roster had been changed again to reflect her day off as Tuesday 21 February. She states that she spoke with Ms. Jennifer Lloyd who told her that her sister Louise Lloyd had instructed the change to the roster be made and if the complainant had an issue with this she should contact her direct. She adds that when she contacted Ms. Louise Lloyd about the matter she told her (the complainant) that she had to be flexible. The complainant adds that when she told Ms. Lloyd she would arrange her appointment for 8:30 and return to work as soon as possible afterwards she (Ms. Lloyd) told her this was unacceptable. The complainant states that when she persisted with her claim that her established working pattern was to have Monday off, Ms. Lloyd adopted a rude and aggressive tone toward her. She adds that this distressed her greatly and she left work and went home. She attended her General Practitioner later that evening and was certified unfit for work for a week. The complainant states that she subsequently made arrangements to meet with Ms. Louise Lloyd to discuss the issue but she (Ms. Lloyd) never kept the appointment.
3.4 The complainant states when she resumed work on 23 February, 2006 Ms. Jennifer Lloyd was cool with her and that this atmosphere continued for a period. She contends that on 4 March, 2006 Ms. Jennifer Lloyd assigned her additional customers (3-4 in sequence) which would not occur normally. She rejects the respondent's assertion that during her pregnancy she was (i) given additional breaks (of fifteen minutes duration) in the morning and afternoon, (ii) was given a more suitable workstation (all employees had the same workstation) and (iii) had stock control and other cleaning duties removed from her (these were not heavy physical tasks). The complainant states that on 30 March, 2006 her work pattern was changed again and she was rostered to work a Sunday. Although this was the first Sunday she had been rostered on duty in 2006 she had not received the two weeks' notice of roster changes which had been agreed with the respondent the previous August. She adds that when she spoke on a conference call with both Ms. Lloyds about this Ms. Louise Lloyd called her abusive names. The complainant states that this episode distressed her so much that she attended her General Practitioner and was certified unfit for work. She states that the respondent subsequently contacted her General Practitioner directly (without her knowledge) querying her medical certificate. The complainant states that she commenced her maternity on 29 April, 2006 (on the basis of medical advice) due to the stress she was being subjected to by her employer although she had not intended to commence her maternity leave until early July, 2006
3.5 The complainant states that from 23 March, 2006 the established method of calculating her pay was changed and she had not been informed of this in advance. She was due to take a weeks' annual leave and instead of receiving a weeks' pay she received a lower amount. She states that when she queried this Ms. Jennifer Lloyd told her that she was a "flexi-worker" and that her annual leave entitlement was calculated on the basis of 8% of hours worked. The complainant adds that the respondent altered her application form for maternity benefit to reflect this scenario.
3.6 The complainant states that due to the manner in which she had been treated during her pregnancy she felt it would be impossible to return to work after he maternity leave ended and she wrote to the respondent on 31 August, 2006 advising it of this, setting out examples of the "bad treatment" she felt she was subjected to and requesting payment of annual leave and public holidays due to her. She states that the respondent replied on 11 September, 2006 asking her to reconsider her decision and requesting her to attend a grievance meeting on 27 September. The complainant responded on 26 September, 2006 refusing the offer of a meeting stating that she had made a number of attempts to discuss her grievances prior to her maternity leave and they had been rebuffed. The complainant states that she received a cheque from the respondent's accountant in respect of her outstanding entitlements. She adds that she queried the calculation of this cheque because she felt it was incorrect. She received a further cheque on 11 April, 2007 and a final cheque (goodwill gesture) and explanatory letter from the respondent's accountant on 25 October, 2007.
3.7 In summary the complainant asserts that she was discriminated against, harassed and discriminatorily dismissed because of her pregnancy. She states that she was never given copies of any policies on harassment or grievance procedures by the respondent, whether direct from it or from Cleary's Store - where the respondent operates on a franchise basis. She contends therefore that the respondent is not entitled to avail of the defence available to it at section 14A of the Acts as regards her claim of harassment. It is submitted on her behalf that the respondent failed to fully engage with the complainant and the Tribunal and that a lot of issues were introduced for the first time at the Hearing and that the Equality Officer should have cognisance of this.
4. SUMMARY OF RESPONDENT'S CASE
4.1 The respondent rejects the complainant's assertions in their entirety. It accepts that the working relationship between it and the complainant was friendly and that a policy was implemented in August, 2005 where if possible, employees would receive two weeks' notice of changes to their established working patterns. It states however, that it is a small business enterprise and it was not always possible to comply with the arrangement and therefore it viewed it as a guideline rather than a binding policy. It accepts the complainant's attendance pattern as stated by her and that she generally worked full-time hours each week. However, it adds that she was a full-time flexi worker i.e. she worked five out of seven days as necessary. The respondent states that the complainant was advised of this at interview and again at induction training. The respondent accepts that it did not furnish the complainant with a contract of employment or other document setting out her terms of employment but states that many of the terms were known to the complainant or were available from the roster or her payslips.
4.2 The respondent accepts that Ms. Jennifer Lloyd spoke with the complainant on the evening of 24 January, 2006 and that the complainant informed her of the details of her next hospital visit. The respondent also accepts that the roster was changed as stated by the complainant but adds that this happened in order to accommodate another employee who was to be off on annual leave that week. It states that when the complainant contacted told Ms. Louise Lloyd on 16 February, 2005 she told her she was pregnant, that she didn't have to put up with this and that she would make life difficult for the respondent. It states that the complainant's rostered day off was subsequently re-instated to her later that afternoon. The respondent adds that in any event, the complainant was certified unfit for work from 16-23 February, 2006. The respondent states that Ms. Louise Lloyd has no recollection of receiving a message that the complainant wished to meet with her around that time.
4.3 The respondent states that the complainant was rostered to work on Sunday 2 April, 2006 because one of the other employees, who normally worked Sundays, was on annual leave that week. The complainant had been off on annual leave the previous week and this had necessitated changes in the roster for other employees. It accepts that she was not given two weeks' notice of this and restates its comments that it viewed this as a guideline rather than a binding policy. The respondent states that when the complainant phoned Ms. Jennifer Lloyd about this issue both Ms. Lloyd's were in a car and it therefore may have appeared as a conference call to the complainant. It adds that Ms. Louise Lloyd was driving and the respondent accepts that she used the words attributed to her by the complainant, but states that these were directed at another driver who had nearly collided with the car. It argues therefore that this could not be construed as discriminatory treatment or harassment of the complainant.
4.4 The respondent rejects the complainant's assertion that Mr. Jennifer Lloyd was cool with her following her return to work on 23 February, 2006 or that she assigned her additional work on 4 March, 2006. The respondent accepts that Ms. Jennifer Lloyd contacted the complainant's General Practitioner in early April, 2006. It states that she did so because she was unable to read the writing on a medical certificate and was seeking clarification of same. It adds that Ms. Lloyd spoke with a receptionist and she did not route her query through the complainant because she was nervous of the complainant.
4.5 The respondent states that the complainant resigned her position on 31 August, 2006. It adds that notwithstanding this resignation it wrote to her on 11 September, 2006 inviting her to a meeting to discuss the matter and asking her to reconsider her decision. It adds that the complainant declined the offer and it submits therefore that it did not dismiss the complainant as asserted by her. The respondent is unable to offer any explanation as to how the complainant's entitlements post cessation of her employment with it were calculated. It states that all payroll issues, including completion of the complainant's application form for maternity benefit, were handled by its accountant and it accepted the calculation made by it as accurate as the accountant had applied the appropriate formula for calculating annual leave as prescribed by the organisation of working time legislation.
4.6 The respondent submits that the complainant has failed to adduce any evidence that it subjected her to any less favourable treatment or harassment contrary to the Acts. It further submits that the complainant resigned her position and that her failure to engage with the respondent following its letter of 11 September, 2006 is a factor which must undermine her contention that she was constructively dismissed as a result of her pregnancy contrary to the Acts.
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 The issues for decision by me is whether or not the respondent (i) discriminated against the complainant on grounds of gender, in terms of section 6(2) of the Employment Equality Acts 1998 and 2004 and contrary to section 8 of those Acts in relation to her conditions of employment when she notified her employer she was pregnant in January, 2006, (ii) harassed the complainant on grounds of gender, in terms of section 6(2) of the Employment Equality Acts 1998 and 2004 and contrary to section 14 A of those Acts when she notified her employer she was pregnant in January, 2006 and (iii) dismissed the complainant in circumstances amounting to discrimination on grounds of gender, in terms of section 6(2) of the Employment Equality Acts 1998 and 2004 and contrary to section 77 of those Acts when her maternity leave finished in September, 2006. In reaching my decision I have taken into consideration all of the submissions, both written and oral, submitted to the Tribunal as well as evidence advanced at the Hearing. At this juncture I feel it is appropriate to state that both parties produced witnesses at the Hearing who gave evidence. In general I found this evidence to be (i) inconsistent and contradictory to the degree that it has little or no probative value and/or (ii) irrelevant to the case at hand.
5.2 Section 85A of the Employment Equality Acts 1998 and 2004 sets out the burden of proof which applies to claims of discrimination. It requires the complainant to establish, in the first instance, facts upon which she can rely in asserting the he suffered discriminatory treatment on the grounds specified. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised. If the complainant does not discharge the initial probative burden required her case cannot succeed.
5.3 The European Court of Justice held that as pregnancy is a uniquely female condition less favourable treatment on grounds of pregnancy constitutes direct discrimination on grounds of gender . The Maternity Protection Acts, 1994 and 2004 and Regulations made thereunder, transpose the EU Pregnant Workers Directive into Irish law and provides entitlements to pregnant employees as regards paid time off work for ante-natal care. Whilst this Tribunal has no jurisdiction in the enforcement of rights under those statutes, in applying the principle of non-discrimination to the instant case, it is appropriate that the entitlements of the complainant and the obligations of the respondent under the relevant body of European law be taken into account. The complainant attended for her first ante-natal appointment on 24 January, 2006 and as a result of medical advice at that visit was unable to attend work that day. It is not disputed that she spoke on the telephone with Ms. Jennifer Lloyd later that evening, in the course of which she informed Ms. Lloyd of her the date of her next visit - Tuesday 21 February, 2006. The complainant contends that when she attended at work on 25 January, 2006 she noticed that her day off, which was generally Monday (and from perusal of diaries and roster details submitted by the respondent I am satisfied that this was the case), was changed to Tuesday for the week commencing 20 February, 2006 to coincide with her hospital appointment on that day. In the course the Hearing Ms. Jennifer Lloyd confirmed that she had changed the complainant's day off for that week at the instruction of her sister (Ms. Louise Lloyd). The respondent stated that this change arose because another member of staff was on annual leave that week.
5.4 From perusal of the diary entries for that day it is clear that this was not the case. What the diary shows is that another member of staff needed time off early on the morning of Monday 20 February, 2006. The respondent was unable to say when this entry was placed in the diary. I do not accept it as coincidental that the respondent became aware of that employee's need for time off on 20 February, 2006 on the same day that the complainant advised it of her hospital appointment for 21 February, 2006 and that it was therefore entitled to change the complainant's day off - the only time such a change was made to her day off. At the Hearing the respondent confirmed that there were other alternatives available to it in respect of the provision of cover for a short time on the morning of 20 February, 2006 but that it gave no real consideration to these. I am satisfied, on balance, that the reason why the complainant's day off was changed to a Tuesday for that week was because the respondent believed there was a possibility she may be certified as unfit to return to work on that day, as had occurred on 24 January at her first hospital visit. It follows therefore that the respondent's actions were influenced totally by the complainant's pregnancy and she has established a prima facie case of less favourable treatment on grounds of grounds of gender contrary to the Acts.
5.5 On the basis of the evidence adduced by both parties I am satisfied that the respondent changed the diary again (in February, 2006) to again reflect the complainant's day off as Tuesday 21 February, 2006 and that this gave rise to a heated telephone conversation between the complainant and Ms. Louise Lloyd on 16 February, 2006. It is beyond doubt that by this stage the respondent was fully aware the complainant was to attend for a hospital appointment on 21 February, 2006. It offered the Tribunal no explanation as to why the complainant's day off was changed for a second time. In the circumstances I find that these events constitute a further incident of less favourable treatment of the complainant contrary to the Acts. I do not consider the respondent's comment that the complainant was on sick leave from 16-23 February, 2006 as relevant in this instance.
5.6 The complainant asserts that Ms. Jennifer Lloyd was cool with her on her return to work on 24 February, 2006 and that she subsequently assigned her additional clients in an unfair manner on 4 March, 2006. Having evaluated the evidence adduced by the parties on this issue it is clear that the working relationship between the parties, which had previously been amicable, was somewhat strained by this time. However, I am not satisfied that the uncorroborated evidence of the complainant in relation to these issues is sufficient to discharge the initial probative burden required of her.
5.7 It is common case that Ms. Jennifer Lloyd made direct contact with the complainant's General Practitioner enquiring as to the content of a medical certificate. The respondent states that it did so because Ms. Jennifer Lloyd was nervous of the complainant. I cannot accept that explanation. Whilst the complainant had previously queried the respondent's actions and sought to exercise her statutory rights in an assertive manner, no evidence was adduced to indicate that her behaviour was such as to give rise to Ms. Jennifer Lloyd being nervous of her. The respondent infringed the complainant's privacy by behaving the way it did and should have sought clarification of the contents of the medical certificate through the complainant - if Ms. Jennifer Lloyd felt unable to seek this clarification I am satisfied, on the basis of Ms. Louise Lloyd's general demeanour at the Hearing, that she had no such reservations. I am therefore satisfied that the respondent's actions in this matter constitute less favourable treatment of the complainant on grounds of gender contrary to the Acts.
5.8 The complainant states that Ms. Louise Lloyd used abusive language to her in the course of a telephone conversation on 30 March, 2006. The source of the dispute on this occasion was the complainant being rostered to work the following Sunday 2 April and she had not been given two weeks' notice of this. I note the complainant accepts that she would, on occasion, be required to work on Sunday and that this was the first occasion she had been rostered for Sunday that year. On examination of the diary submitted by the respondent I am satisfied that another member of staff, who generally covered the Sunday shift, was due to go on annual leave that week and cover was therefore needed. I am also satisfied that whilst it was agreed staff would receive two weeks' notice of changes to rosters, there are circumstances where such notice was not possible. Having carefully examined the evidence on this issue, I find that the complainant's response when rostered was unreasonable and she was not treated less favourably as a result of her pregnancy. It was accepted by Ms. Louise Lloyd that she uttered the words attributed to her by the complainant in the course of this telephone conversation but she (Ms. Lloyd) states she was driving at the time and that her comments were directed at another driver who nearly collided with her. Whilst this explanation sounds plausible I have difficulty in accepting as it. It is clear to me that the accumulation of issues between the parties over the preceding number of weeks had severely strained the working relationship between them and I am satisfied, on balance, that the comments were directed at the complainant. I am fortified in my view on this point by Ms. Louise Lloyd's demeanour toward the complainant at the Hearing. However, I am not satisfied that this incident constitutes discriminatory treatment of the complainant on grounds of her pregnancy.
5.9 The complainant states that she commenced her maternity leave on 29 April, 2006 due to the stress she was suffering as a result of the respondent's behaviour. She adds that she did so on the basis of medical advice and submits that this constitutes discriminatory treatment of her on grounds of gender contrary to the Acts. I cannot accept this argument. Whilst the circumstances which prevailed at the time may have resulted in the complainant being unable to attend work, it was open to her and her medical advisor to place her on certified sick leave, an approach which had been adopted on a number of previous occasions, instead of adopting the rather hasty option of placing her on maternity leave. It follows therefore that the complainant was not subjected to discriminatory treatment as regards this element of her complaint.
5.10 The complainant contends that the respondent altered the basis on which it calculated her annual leave and public holiday entitlements during her maternity leave which resulted in her receiving a lower payment than she was entitled. The Maternity Protection Acts, 1994-2004 provides that all employment rights (except the right to pay) are preserved during a period of maternity leave. The complainant states that prior to March, 2006 she received a full days' pay (8 hours) for each public holiday and also received 20 days' annual leave and on the basis of the evidence presented in the course of my investigation I am satisfied that this is was the case. It is clear from the evidence of both Ms. Lloyds, as well as the documents issued by the respondent's accountant on its behalf - including the complainant's application form for state maternity benefit - that the complainant was re-categorised as a "full-time flexi worker" in March, 2006 and the basis of calculation of her entitlements changed to an alternative formula (8% of hours worked) between the start of the year and the commencement of her maternity leave. This formula was also applied to the calculation of public holiday entitlements. The fact that this process was handled by the respondent's accountant and not either of the Ms. Lloyds themselves has no bearing on the matter as section 15(2) of the Acts firmly fixes liability for the accountants (who were acting as agents for the respondent) with the respondent. In the course of the Hearing another employee of the respondent, who worked similar hours to the complainant on a five out of seven day attendance pattern, stated that she received 20 days' annual leave and a full day (8 hours) pay for each public holiday during her period of employment with the respondent, some of which postdates the period when the complainant was an employee. I accept the veracity of that witness's evidence on this matter and note that the respondent did not dispute it. Accordingly, I find that the complainant has established a prima facie case of less favourable treatment on grounds of grounds of gender contrary to the Acts in respect of this element of her complaint.
5.11 In the preceding paragraphs I have found that the complainant has established a prima facie case of less favourable treatment on grounds of gender in respect of (i) the manner in which the respondent altered her day off (paragraphs 5.4 and 5.5) and (ii) the manner in which her annual leave and public holiday entitlements were calculated (paragraph 5.10) and it therefore falls to the respondent to satisfy the Tribunal that the principle of equal treatment has not been breeched. The respondent has failed to discharge this probative burden and the complainant is entitled to succeed as regards these elements of her complaint. She is similarly entitled to succeed in respect of the behaviour of the respondent in contacting her General Practitioner (paragraph 5.7).
5.12 The complainant submits that she was harassed by the respondent on grounds of gender contrary to section 14A of the Acts. That provision defines harassment as follows:
"(i) ...any form of unwanted conducted related to any of the discriminatory grounds....
being conduct which ....has the purpose or effect of violating a person's dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.".
Whist I accept that the working environment was not a pleasant one for the complainant from January, 2006 onward - particularly as there had been occasions when she socialised with Ms. Jennifer Lloyd, I cannot accept that the conduct of the respondent constitutes harassment contrary to the Acts and this element of her complaint therefore fails.
5.13 The final element of the complainant's claim concerns an assertion that she was constructively dismissed on grounds of gender. She states that due to the treatment she suffered in the months after she informed the respondent of her pregnancy she found it impossible to return to work. Section 2(1) of the Acts defines dismissal as including:
"the termination of a contract of employment by an employee (whether prior notice of termination was or was not given to the employer) in circumstances which, because of the conduct of the employer, the employee was or would have been entitled to terminate the contract, without giving such notice, or it was or would have been reasonable for the employee to do so ...."
In An Employer v A Worker (Mr. O No.2) the Labour Court comprehensively addressed the issues of constructive dismissal under employment equality legislation. It noted that the above definition was practically the same as the definition of "dismissal" contained in the unfair dismissals legislation and held that the tests for constructive dismissal developed under that legislation - the "contract" test and the "reasonableness" test - were applicable tests under the Employment Equality Acts. In addition, the Court held "that what is reasonable is pre-eminently a question of fact and degree to be decided having regard to all the circumstances of the particular case".
5.14 In the instant case I am satisfied that the "reasonableness" test is the more appropriate. It requires the complainant to satisfy the Tribunal that the behaviour of the respondent was so unreasonable that she could not fairly be expected to put up with it any longer and she was therefore entitled to resign from its employment. The corpus of caselaw developed on this point requires the complainant, before taking the unilateral step of terminating her employment, to give the respondent the opportunity to address her grievance or complaint. Whilst the respondent had no formal grievance procedure in operation at the time the complainant never clearly indicated the full extent of her grievance to it until she tendered her letter of resignation on 31 August, 2006 - and provided some examples of the "bad treatment" she felt she had received. In the circumstances I think it was reasonable for the respondent to assume the previous difficulties which had occurred between them had been resolved. In the course of the Hearing the complainant accepted that this was the first occasion she had raised her grievance in writing with her employer. The respondent's response was swift, responding on 11 September, 2006, inviting the complainant to a grievance meeting two weeks later as Ms. Jennifer Lloyd was on leave until then. The complainant refused this offer. I note the complainant states that she made a number of efforts to meet with the respondent during the period January-April, 2006 to discuss her problems "face-to-face" with Ms. Louise Lloyd in particular. Yet when the respondent suggested such a meeting, following the complainant giving notice of her intention to terminate her employment, she (the complainant) flatly rejected the offer and denied the respondent an opportunity to address her concerns. Her resignation was therefore premature and unreasonable in terms of grounding a complaint of constructive discriminatory dismissal. In light of the foregoing I find that the complainant has failed to establish a prima facie case of discriminatory dismissal in terms of the Employment Equality Acts, 1998 and 2004.
6. DECISION OF THE EQUALITY OFFICER.
6.1 I have completed my investigation of this complaint and make the following Decision in accordance with section 79(6) of the Employment Equality Acts, 1998-2008. I find that -
(i) the respondent discriminated against the complainant on grounds of gender in terms of section 6(2) of the Employment Equality Acts 1998 and 2004 and contrary to section 8 of those Acts in relation to his conditions of employment.
(ii) the complainant has failed to establish a prima facie case of harassment on grounds of gender in terms of section 6(2) of the Employment Equality Acts 1998 and 2004 and contrary to section 14 A of those Acts.
(iii) the complainant has failed to establish a prima facie case of discriminatory dismissal on grounds of gender in terms of section 6(2) of the Employment Equality Acts 1998 and 2004 and contrary to section 77 of those Acts.
6.2 Having regard to all of the factors of this case I am satisfied that the appropriate form of redress is an award of compensation. I therefore order, in accordance with my powers under section 82(1) of the Acts, that the respondent pay the complainant the sum of €10,000 by way of compensation for the distress suffered by her as a consequence of the discrimination. This award does not contain any element in respect of remuneration and is therefore not subject to PAYE/PRSI. In addition, I order that the respondent introduce, within four months of the date of this Decision, (i) a policy on harassment covering all nine discriminatory grounds under employment equality legislation and (ii) a formal grievance procedure. Copies of these policies must be circulated to existing staff at that time and the respondent should ensure that they are furnished to all new employees at induction training.
_______________________________
Vivian Jackson
Equality Officer
15 October, 2009