THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision DEC - E2010-015
PARTIES
Ms. Samantha Long
(represented by Ursula Finlay BL, acting on instruction from
Alan Mitchell Solicitor)
and
The Hanly Group
(represented by Ray Ryan BL acting on instruction from
Delaney & Co. Solicitors.)
File Reference: EE/2007/230
Date of Issue: 15 February 2010
1 Claim
1.1 This dispute involves a claim by Ms. Long that she was harassed and discriminated against in respect of her conditions of employment on grounds of her family status, in terms of section 6(2) of the Employment Equality Acts and contrary to sections 8 and 14A of those Acts. She also claims victimisation and that her dismissal was discriminatory or victimisatory in nature in terms of section 77 of the Acts.
2 Background
2.1 Ms. Long was employed at Lough Rynn Hotel as Sales and Marketing Manager in 2006. Following the appointment of a Group-level manager in mid-December 2006, who had responsibility for a number of hotels, she was required to change her duties and ultimately her employment was terminated in January 2007. The complainant was unable to comply with the new requirements and changes because of her family circumstances. The respondent denies that the changes, and the complainant's dismissal, were because of the complainant's family status and asserts that they were required for business reasons.
2.2 Ms. Long referred a claim to the Director of the Equality Tribunal under the Employment Equality Acts 1998-2008. In accordance with her powers under section 75 of the Act, the Director then delegated the case to me, Bernadette Treanor, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Act. The date of delegation was 14 November 2008 and my investigation began on that date.
3 Summary of the Complainant's Case
3.1 Since finishing her education the complainant has worked in the hotel industry. She settled in Leitrim in 2002 and following the birth of her son her job choices have been balanced with her responsibilities as a parent. She submitted her CV in 2005 hoping for a position in Lough Rynn. Throughout the recruitment process the complainant was clear that she would not be available outside normal office hours because of her parental responsibilities. She would likewise be unavailable for travel. It was indicated to her by the manager of the hotel who interviewed her that this did not present any difficulties.
3.2 She began working at Lough Rynn in early 2006 as an on-site sales person. The hotel did not open until June 2006 and during the initial period of her employment she was involved in a variety of duties. In October she was informed that the manager of the hotel (Manager) intended to appoint a Deputy General Manager and that she, the complainant, was the obvious choice. However, because she was only available for office hours he could not offer her the position. The complainant understood this situation.
3.3 In mid-December 2006 a new Group General Manager, CG, was appointed. On 2 January 2007 the Manager indicated that immense pressure was being brought to bear to reduce costs and increase sales. Following a review of rosters and minimum cover required the Manager indicated that CG required the complainant to go out on the road to generate business and that this was not negotiable. The complainant said that given the poor business levels at that time she understood the reasoning behind this but reiterated her position in relation to hours of attendance and travel. The Manager said he was aware of this but that CG said that a sales manager should be on the road and he was not interested in the reasons why not.
3.4 On 3 January 2007 CG told the complainant that he was disappointed at the level of corporate business that had been captured. The complainant indicated that the hotel did not at that time have conferencing, golf or leisure facilities but that she had signed up a number of businesses for their bedroom business. He told her he required 100% occupancy, and that if she did not fill the rooms she would be cold calling, that is calling to businesses without the business contacting the hotel first. Following her response he indicated that he would park the cold calling issue for the time being.
3.5 On 8 January 2007the complainant moved into office space dedicated to sales. It took a number of days before the IT infrastructure was operational. At this time the Manager started to go on the road himself because the complainant was unwilling to travel. Between 9 and 12 January 2007 the Manager called the complainant several times indicating that he could not understand why she would not go on the road and occasionally he got angry and shouted at her. The complainant felt that she was constantly explaining her position because of her son. On some occasions the Manager called her back to apologise. He also indicated to the complainant that CG had said he did not rate her ability as a manager and that he had serious doubts about the Sales Department. The complainant was concerned that should she comply with their requirement to travel then local sources of business would be exhausted very quickly and then she would be required to travel further. On 12 January the Manager indicated that he could not see a good outcome for the complainant. He did not explain this but the complainant understood it to be a threat to her job.
3.6 The complainant felt it would be useful to clarify exactly what was required of her and she requested a meeting with the Manager and CG. This was to take place on 18 January 2007. At 8:30 am the complainant received a call from the Manager indicating that the meeting was to take place in Head Office although the complainant was under the impression at all times that it was to take place in the hotel. She was unnerved by this as she was unable to attend because of a meeting arranged with a prospective corporate client. At 12:20 she received a call from the Manager who said that they had held the meeting without her and that they were on their way to see her to present her with her new job description. When the Manager arrived he handed her a two page document on the corridor and told her that CG would be there in a few minutes and that its "yay or nay" at that stage. The complainant states that at that point she was quite distressed but indicated quietly to the Manager that she felt her legal rights had been infringed. He responded by saying that if this gets messy she would not get a good reference and that he would deny everything. The complainant requested extra time to consider the job description but was told this option was not available to her. When CG arrived he described the difficult circumstances facing the hotel. The complainant repeated the arrangements agreed with her on her appointment. She stated that she would need to consider the document and get back to them. Again it was indicated to her that they needed her answer immediately. Following some negotiation on this it was agreed that her response was required by Monday 22 January 2007. CG pointed out that the travel requirement were not only local or national and that the arrangements would be permanent. When she asked about the bottom line CG replied that they would have to let her go. She asked when and was told she would not be put under pressure and that two weeks notice would apply. The sales executive working with the complainant told the complainant that evening that she had been informed that someone new would be starting to work with her, the sales executive, soon.
3.7 On Friday 19 January 2007 at 4:40 pm the complainant was asked to present a report of all the wedding enquiries received in the previous 9 months. The complainant complied with this requirement despite the lateness of the request. She was also told that the meeting would take place on Monday at 9am. The Manager also said that another possibility was that she might be stripped of her manager title.
3.8 On Monday 22 January 2007 the Manager was unavailable and CG informed the complainant that he would meet her himself. He did not arrive until 2:15. The complainant asked for permission to address the meeting first and told CG that she would like to use the provisions of the company's grievance procedure as set out in her contract. CG indicated that he had never seen her contract and asked what she expected him to do now. The complainant replied that she did not know since the provisions of the procedure were not known to her. The complainant states that the remainder of the meeting was short but heated until she left. She subsequently received a phone call suggesting that she submit her grievance to Alan Hanly CEO.
3.9 At 12:30 on Tuesday 23 January the complainant was told that CG and VOC were at the hotel to see her. VOC indicated that he was there as a mediator and that CG would have an opportunity to explain what had occurred followed by the complainant. The complainant asked for a copy of the grievance procedure but this was ignored. CG presented his version of events followed by the complainant. VOC suggested a short break and said that since she was refusing to travel and appeared to have stopped talking to them on that issue they seemed to have reached a point of no return. A five minute break was suggested and VOC indicated that they would call her back when they were ready. Both CG and VOC remained in the room.
3.10 When she was recalled VOC told her that they decided that what happened to her was not harassment or bullying. He said that there was only one outcome to this as her relationship with CG appeared to have soured beyond repair. VOC stated that he had no option but to let her go.
3.11 The complainant asserts that following CG's appointment a number of personnel were appointed to positions with the respondent who were known to CG. The person who was appointed to her position following her dismissal was one of these appointments. The complainant asserts that CG wanted rid of her to make room for this other person
4 Summary of the Respondent's case
4.1 It is the respondent's contention that the complainant unreasonably refused to perform part of her contract. The respondent denies that the complainant made it clear during her interviews that she would be unable to travel.
4.2 When CG was appointed the losses being made were immediately apparent and he sought to make the complainant's role specific and to stop her working as a duty manager. His impression of the complainant's role was that it had not been developed while at the same time he was aware that the hotel could not afford to continue "haemorrhaging". The manager accepted the suggested changes and implemented them. The Hotel was only 6 months old. It was a beautiful product and in CG's opinion the complainant and the sales executive working with her should focus on sales and not on anything else.
4.3 When he requested the list of clients and potential clients on 19 December he was under the impression that the information was readily available. The manager indicated to him that it was recorded electronically.
4.4 CG stated in relation to the person recruited after the complainant left, that they needed someone to go out on the road and that this role was filled by RC. The respondent did not accept that there was anything untoward in respect of RC's appointment. RC was not a replacement for the complainant.
4.5 CG accepted that the complainant's performance was acceptable. Given the crisis facing the hotel he accepts that staff felt pressure. Things needed to be done to reduce losses and increase sales. However, her role needed to be fleshed out and this occurred during a meeting between himself and the manager. It was subsequently presented to the complainant by the manager. CG stated that regardless of the interpretation, the complainant's function as it had developed was redundant and the role was redrafted to protect everyone else's role.
4.6 CG accepts that the manager went out on the road and when asked at the hearing why the manager did this if he understood it to be the complainant's role CG replied "Good question".
4.7 When the complainant had listed, on 3 January, various companies to be visited during the following week CG thought this was great and that it was now time to move to the next level. However, the complainant did not undertake these visits.
4.8 The complainant's new job specification was agreed between CG and the Manager and they set targets for her also. Parts of it did not apply to her and CG joked with her that he would do the nice trips to the USA. CG stated that there was a discussion around the complainant's child being left off and collected so that the complainant could do sales calls in between. CG states he believed the complainant was clear that the travel would be within normal working hours even though this was not mentioned on the job specification. CG did not accept that the complainant would be required to travel to UK or work outside of normal hours. Reference was included to UK and USA because of the significant market coming from those countries. Failte Ireland organises trade fairs in these countries . CG indicated that there were Chamber of Commerce evening meetings, a late check-in and other situations requiring late attendance outside of normal hours but he was adamant that the complainant was not required to do that. CG stated the requirement for the complainant to go on the road, after dropping of her child, was fundamental to getting the hotel off the ground. There was a need to catch people in corporate companies during office hours.
4.9 CG stated that changes were made throughout the hotel, staff rotas were reviewed, expenses tightened up, and he indicated that all departments were reviewed and received change.
4.10 CG indicated that he was nervous during the meeting on 22 January as it was the first time he had been accused of such behaviour. He explained to her that they were changing her job role as the situation could not continue as it was. The complainant told him that there had never been a problem before his arrival and that the hotel owners admired her work. He indicated that before his arrival there was no control over what was happening. He had to reduce loses with an action plan or the property would not remain open. He left the hotel very disturbed by the meeting and had a genuine fear that his good name would be tarnished
4.11 On 23 January VOC asked CG first to describe the situation and then asked the complainant to describe hers. CG found it a very shocking and frightening situation. During the meeting VOC intended to mediate between the parties and he stated that the new position was one they wanted the complainant to fill. It was indicated that the child drop-off and pick up could continue but during those hours business was to be extended.
4.12 CG stated that both himself and the complainant left the meeting but accepted that he was back before she was asked to return.
4.13 When VOC spoke he indicated that the position in its current format needed to be changed and that the complainant would be kept as marketing manager. CG did not respond. The complainant indicated that she was not able to fulfill that role and that she had no option but to accept what VOC was talking about in terms of redundancy. When she was told what she would receive all three shook hands. It was agreed that she would leave that day but no time was set.
4.14 When asked to explain what 'let go' meant in terms of the complainant CG stated that her original position was made redundant and that she would lose her job if she did not fulfill the new role.
4.15 VOC stated in evidence that his involvement was limited enough as he had no supervisory role in relation to the hotel. His role was across the Hanly group as a whole. CG was recruited because they were concerned about the hotel. It was felt that they had a really good product but were not getting business quickly enough. They were concerned about the management of the hotel.
4.16 VOC knew the complainant by reputation and it was very positive. She was considered a strong manager, capable and with a good long term future.
4.17 Alan Hanly asked him, VOC, to call to the hotel as there was a matter to be adjudicated on. There was some element of bullying/harassment and an issue around the marketing of Lough Rynn. VOC was told the issues were interlinked. He was asked to go there, establish the problem and resolve it.
4.18 VOC stated that the meeting went as intended without the result he wanted. He was of the opinion that travel was always part of her role. He stated that he kept the meeting as informal as possible hoping that would aid resolution of the matter. He stated in evidence that harassment was not going to be the kernal of the meeting. His genuine impression was that she did not see any wrong or damage as result of the harassment. He was satisfied that no particular incident was described and that it was all about her role rather than how CG behaved or delivered it. He arrived at the view that there was no substance to the claim. He was concerned about the leakage of cash and the next discussion was about her role in the hotel.
4.19 The complainant had a view that it could be done from the hotel but the group wanted a high-level interface and were therefore surprised she took this view. The Group's concerns were that the complainant was not looking at the bigger picture because of her work-life balance issues. They felt it was important for marketing and wanted a strong person to drive that business. She was not doing as much travel as VOC had thought and regardless of how this had developed initially it was a serious error on the part of the manager to allow it to continue.
4.20 He believed he had put the grievance aside and wanted her to continue in the new role. He tried to slow the meeting down so that the complainant would not make a decision to leave. He was satisfied that the respondent could accommodate her work-life balance issues and that CG could organise it. They were interested in results and not time keeping. After discussing things for a while he decided to take a break. If she could not adjust to the role then he would have to respond by saying 'so be it'. They broke for 15 minutes during which time he took a walk.
4.21 The first back was CG who was at a loss but made it clear that if the complainant did not accept the position going forward then they would have to accept her resignation.
4.22 The position was explained to the complainant who said she could not accept it. VOC indicated with regret that she would be made redundant. The complainant was upset but nobody was happy.
4.23 In evidence VOC stated that he believed the complainant resigned.
4.24 During cross-examination VOC admitted that he had not seen the new job specification presented to the complainant. He also stated that it did not matter what was in the document since if he agreed local travel only then that is what would have happened. However, when pressed he stated that if UK visits came up the complainant would have been required to go.
4.25 The respondent indicated that the new deputy manager RC appointed after the departure of the complainant was given responsibility for sales although she was a general deputy manager. CG claimed that RC's travel in the three months following her appointment amounted to 13 days. In her evidence RC indicated that she travelled two days. She also stated in evidence that in her first couple of months there was not much travel as it was necessary to get the sales office organised as appropriate.
4.26 In April 2007 the Hotel entered into negotiations with Manor House Hotels and this process took approximately 3 months. Following their signing up with Manor House Hotels the respondent had no further need for sales travel.
4.27 CG stated that the number of people employed by the respondent, who had previously worked with him, was eleven.
4.28 The respondent's representative argued that as the respondent's investigation related only to alleged harassment by CG I was precluded from addressing any allegations of harassment relating to other individuals.
5 Conclusions of the Equality Officer
5.1 What must be decided is whether the complainant was the subject of (1) harassment, (2) discriminatory treatment (3) discriminatory dismissal on the family status ground, (4) victimisation or (5) victimisatory dismissal contrary to the Acts.
5.2 The burden of proof required from the complainant is detailed in section 85A of the Employment Equality Acts which provides that should a complainant establish facts from which it may be presumed that s/he suffered discrimination, it is for the respondent to prove the contrary. Detailed application of this approach may be found in Mitchell v Southern Health Board [2001] ELR201.
5.3 The complainant stated that she was interviewed for the job by the Manager. The respondent disputed this and said that she was interviewed by a management consultant in addition to the manager. The manager no longer works for the respondent and was not presented as a witness. The management consultant was present at the hearing but his evidence was, at times, conflicting. Therefore the only credible direct evidence presented in this regard was the complainant's. On that basis I am satisfied, and I find as a fact, that she was recruited in the full knowledge that she would not be able or willing to travel.
5.4 Evidence was presented that indicated that substantial pressure was put on staff to increase sales. Pressure was also brought to bear in relation to off-site visits. I am satisfied that this created a very difficult atmosphere to the extent that the manager, who had recruited the complainant and was, according to the complainant's direct evidence, aware of her difficulties in relation to off-site travel, felt compelled to undertake the travel himself. In turn, I am satisfied based on the evidence presented, that his upset and annoyance at having to do that cascaded to the complainant who in turn found herself increasingly distressed and having to explain herself in terms of her child and her agreed terms of employment. I find that the complainant has established a prima facie case that she was harassed on the family status ground. As the respondent did not have policies or other mechanisms in place at that time which might have prevented this they cannot avail of the defence in section 14A(2).
5.5 The complainant lodged a complaint of bullying and harassment with Alan Hanly who was the CEO of the Hanly Group who owned Lough Rynn Hotel on 22 January 2007. This Tribunal does not address complaints of bullying but it does address complaints of harassment. The complainant has not presented any evidence that satisfies me that any of the treatment she received was as a result of or connected with her lodging her complaint of harassment with her employer. Therefore, I find that the complainant has failed to establish a case of victimisation or victimisatory dismissal.
5.6 The complainant has alleged that her treatment and dismissal were discriminatory based on her family status. The respondent has stated categorically that it required the complainant to go on the road and drum up business. It adds that this was restricted to local and office-hours travel only. The respondent contradicted itself when it indicated that should it arise, the complainant was also required to be available for out of hours business and for UK travel. Both CG and VOC presented this contradiction in the course of the Hearing. The respondent asserts that the hotel's losses were so extensive as to be described as a haemorrhage. While some restructuring of the business took place it was stated in evidence that it was imperative that the complainant undertake her role as it was always envisaged so that extra business could be created. The complainant indicated that the hotel did not, at that time, have the facilities which she was required to sell and that brochures were not available either. In other words, she was required to encourage bookings from businesses for meetings rooms and other facilities that did not yet exist. She also indicated that the sales office needed organisation. The respondent felt that the imperative overrode all other considerations and that since the complainant would not do as required she was dismissed. However, when a new deputy general manager, RC, was appointed (this being the role the complainant had to refuse because of her family commitments) and required to oversee the sales role there was apparently no difficulty in her not travelling and she stated in evidence that over the first few months she organised the sales office. RC had no children at the relevant time and therefore had a different family status to the complainant. The relevant period during which pressure was brought to bear on the complainant was from CG's appointment in mid-December until her dismissal on 23 January 2007, just over one month. The person undertaking the sales role after the complainant was under no such pressure and was allowed at least three months to bed down the role and get organised. In evidence she stated that she travelled only 2 days in the first three months so it would appear that the imperative for the person responsible for sales to travel no longer existed. It disappeared altogether according to the respondent when the hotel was linked with the Manor House Hotels.
5.7 There was some discussion at the hearing around CG's alleged desire to have people around him that he had worked with previously and it was alleged that the complainant was removed to make room for one of those people. Indeed RC had previously worked with CG. However, at all times CG maintained that the complainant was not acceptable because of her inability or unwillingness to travel.
5.8 CG, through the manager, issued the complainant with a very detailed job specification which included requirements for her to travel within Ireland, the UK and the USA at a time when her difficulties in relation to travel were already known to him. RC was employed by the respondent relatively soon after the complainant's dismissal and she was required to undertake the sales role. She stated in evidence that she did it because there was nobody else to do it. However, the job specification she was given (which was furnished to the Tribunal) is less specific in relation to the travel requirements - a fact which is extraordinary given the imperative described by the respondent and CG's desire to have this addressed. The imperative to have someone on the road increasing sales appears to have entirely dissipated immediately following the complainant's dismissal which renders questionable the respondent's reliance upon it as the reason for her dismissal.
5.9 I am satisfied, based on the evidence presented, and in particular on a comparison of the treatment received by RC and that received by the complainant before her, that the complainant was treated less favourably and dismissed by the respondent who at all times indicated that this was because of her inability or refusal to travel. As this was, at all times, directly related to the complainant's family status I am satisfied that the complainant has established a prima facie case of discriminatory treatment and discriminatory dismissal on the family status ground.
5.10 The respondent did not invoke the defence included in section 16. However, I shall address this matter briefly in the interests of a thorough investigation.
5.11 The respondent has not presented any evidence that would support an assertion that the complainant refused to undertake, was unavailable to undertake, did not understand, or was not fully competent to undertake the role which was agreed at her recruitment. Nor was there evidence presented that might indicate that the complainant would not accept the conditions, as agreed at her recruitment, under which her duties were to be performed. Therefore I find that the respondent cannot avail of the section 16 defence. The respondent has therefore failed to rebut the prima facie case of discrimination established by the complainant.
6 Decision
6.1 Having investigated the above complaint I hereby make the following decision in accordance with Section 79(6) of the Acts. I find that the respondent:
- discriminated against the complainant on grounds of her family status in respect of its treatment of her between mid December 2006 and her dismissal in January 2007 in terms of section 6(2);
- harassed the complainant on grounds of her family status in terms of section 6(2)
- dismissed the complainant in circumstances amounting to discrimination on grounds of her family status in terms of section 6(2) and section 77 of the Employment Equality Acts;
6.2 In accordance with section 82 I hereby order the respondent to pay the complainant €50,000 by way of compensation for the distress suffered by her as a result of the discrimination. This payment is not subject to the PAYE/PRSI
Bernadette Treanor
Equality Officer
16 February 2010