THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision DEC - E2010 - 126
PARTIES
Ms Denise Batt
(represented by SIPTU)
and
Palmece Ltd, t/a Comfort Inn (in liquidation)
File Reference: EE/2008/126
Date of Issue: 12th July 2010
Table of Contents
Claim 3
Summary of the Complainant's Written Submission 4
Summary of the Respondent's Written Submission 5
Conclusions of the Equality Officer 5
Discriminatory treatment 6
Access to Promotion 9
Victimisation 10
Decision 14
Claim
1.1. The case concerns a claim by Ms Denise Batt that Palmece Ltd t/a Comfort Inn discriminated against her on the grounds of gender and family status contrary to Sections 6(2)(a) and (c) of the Employment Equality Acts 1998 to 2008, in terms of treating her less favourably, und dismissing her through discriminatory selection for redundancy, because she was pregnant.
1.2. The complainant referred a complaint under the Employment Equality Acts 1998 to 2008 to the Director of the Equality Tribunal on 28 February 2008. A submission was received from the complainant on 11 March 2009. No substantive submission was received from the respondent; however, a letter outlining the respondent's position regarding the complainant's alleged discriminatory selection for redundancy was received on 19 January 2009. On 27 January 2009 Ms Catherine Jestin, Registrar of the Equality Tribunal, made a preliminary decision that the complainant's complaint regarding discriminatory selection for redundancy was not admissible due to the proceedings she brought to the Employment Appeals Tribunal in this matter. The complainant's representative was informed accordingly.
1.3. On 13 November 2009, in accordance with her powers under S. 75 of the Acts, the Director delegated the case to me, Stephen Bonnlander, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. On this date my investigation commenced. As required by Section 79(1) of the Acts and as part of my investigation, I proceeded to hold a joint hearing of the case on 3 June 2010.
1.4. I was advised by the respondent's former legal representatives of a liquidator, to whom I wrote by registered post to advise them of the hearing of the complaint. By the same letter, the respondent's solicitors came off the record. The firm that I was advised were the respondent's liquidators wrote to me and gave me the name of another liquidator, to whom I also wrote by registered mail with information about the hearing date. Neither the respondent nor any of the named liquidators attended the hearing of the complaint. On 11 June 2010, I notified the respondent's current liquidator that I was considering the complainant's possible victimisation contrary to S. 74(2) of the Acts, following her evidence at the hearing. The liquidator was given two weeks, until 25 June 2010, to submit observations or responses to this, but did not avail of this opportunity. On 28 June 2010, I received a voicemail from the liquidator, in which it was stated that the liquidator did not wish to be involved in any proceedings before the Tribunal. This was confirmed by letter received on 2 July 2010 and is the last communication associated with the investigation.
2. Summary of the Complainant's Written Submission
2.1. The complainant submits that she was employed by the respondent as a General Manager, starting on a three-month contract in November 2003, and was made a permanent staff member in February 2004. The complainant then enjoyed a period of pay rises and bonuses due to her performance in her role. In January 2006, the complainant advised the respondent that she was pregnant, and of the expected confinement date.
2.2. The complainant submits that shortly afterwards she received a letter from the respondent in which perceived flaws in her work were pointed out to her, something that had never happened before. She submitted the letter in evidence. A later internal audit fully cleared the complainant; however, she submits that the stress she experienced over the matter contributed to high blood pressure in the later stages of her pregnancy.
2.3. The respondent went on maternity leave in June 2006. In October 2006, she made a request to return to work on a four-day week, which was refused. She alleges that she was not allowed or encouraged to apply for a promotional position despite her length of service. Likewise, the complainant submits that when she expressed interest for a position of manager at the Airport Hotel, she was not interviewed for same, but simply informed that the position had gone to a better candidate. She was refused information on the interview criteria and marking scheme when she requested same from the respondent. The complainant was in the advanced stages of another pregnancy at that time and submits that this would have been clear to management.
2.4. The complainant further submits that when the undertaking was transferred to new ownership, she was pressurised into accepting redundancy, regardless of the fact that her position was not redundant. She further alleges that a male colleague who was made redundant on the same day as herself received a much superior redundancy package. She claims that this amounts to discrimination on the ground of gender.
3. Summary of the Respondent's Written Submission
3.1. The respondent submits that due to the fact that the complainant has complained about her selection for redundancy to the Employment Appeals Tribunal under the Unfair Dismissals Acts, she is precluded from having the matter investigated again by this Tribunal pursuant to the provisions of S. 101 of the Acts.
4. Conclusions of the Equality Officer
4.1. The issue for decision in this case is whether the complainant was discriminated against on the grounds of gender and family status within the meaning of the Acts.
4.2. In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to S. 85A of the Acts. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of "sufficient significance" before a prima facie case is established and the burden of proof shifts to the respondent.
4.3. The complainant gave extensive direct evidence of her experiences during the hearing of the complaint. I experienced her as a credible witness with a good recall of events, even of details that weakened her own case. As noted in paragraph 1.2 above, the respondent did not attend the hearing, and all of the complainant's evidence was uncontested.
4.4. The complainant had been employed as General Manager of one of the respondent's hotels since 2004, and had initially enjoyed much success in that role. She enjoyed regular pay rises of about 10%, and bonus payments. When she had to be hospitalised with a burst appendix early on in her employment with the respondent, she was on sick leave for three months on full pay, and was then facilitated with returning to work on a part-time basis for another three months. The complainant was also facilitated to work from home during this time.
4.5. From this background, when she became pregnant in early 2006, she did not anticipate any problems with her employer. She had received her pay increase and bonus payment in January 2006, to reflect her performance in 2005, just before she advised the respondent that she was pregnant.
Discriminatory treatment
4.6. Shortly thereafter, she received a letter, stating that the respondent had cause for concern with regard to matters in her area of responsibility. According to the complainant, normal practice would have been a meeting between herself and her supervisor, not a letter. The complainant also stressed that nothing had ever been raised with her about her performance prior to this letter, and that on the contrary, she had been held up as a model of good practice to other managers within the group for her success in selling the hotel's rooms. The hotel the complainant was managing had also won "Hotel of the Year" within the group.
4.7. Following the letter, the complainant began to receive daily phone calls from her supervisor about trifling matters, whereas before she might have met with him approximately once a month. The complainant contends that this level of close supervision greatly undermined the autonomy of her role.
4.8. The complainant states that she chose to respond to management's letter in writing, and that this upset her managers greatly. She said that her manager, Mr B., said to her: "How dare you put your response in writing." The pressure on the complainant eased off slightly after that, in that Mr B. phoned her every two or three days instead of phoning her daily.
4.9. Through her pregnancy, the complainant developed high blood pressure, which her medical team attributed to the stress she was experiencing in her workplace. The complainant's blood pressure problems led to the development of pre-eclampsia, a potentially serious condition for mother and child. According to the complainant, she nearly lost her baby due to her stress-induced medical problems. According to the complainant, her manager Mr B. showed no concern for these problems. Instead he said to her: "I am under pressure because of you, if you don't break, I will."
4.10. The complainant went on maternity leave on 30 June 2006. Her due date was 12 July. The complainant explained that it had not been possible to source a replacement General Manager before 1 August, and that it was high season for the hotel, so she had been asked by management to stay on as long as possible. The complainant facilitated this request.
4.11. In October 2006, the complainant requested a meeting with her manager, Mr. B, to request an additional eight weeks unpaid maternity leave and, following her return from that maternity leave, one day parental leave per week. The request for extra maternity leave was granted, however, the request for parental leave was refused. While Mr B. initially said he did not see a problem with it, the application was refused by the Operations Manager, Mr. C.. When Mr A., the HR Manager, called the complainant with the news, she was taken aback. The reason given to the complainant was that the business needed a manager on the premises five days per week. However, the complainant points out that this was not a problem when she was facilitated with part-time attendance and working from home following her burst appendix (see paragraph 4.4 above). According to the complainant, she had reliable management systems in place, and no problems arose during the arrangements put in place to support her recovery from the burst appendix. There was no reason for the respondent to believe that difficulties would arise with parental leave. The complainant further stated that she offered flexibility, in that she would be prepared to report for work should her presence in the hotel be necessary. Still, her application for parental leave was refused.
4.12. With the additional unpaid maternity leave added to her leave, the complainant returned to work in March 2007. In February 2007, the HR Manager Mr A asked the complainant for a meeting "for the handover of the business", which the complainant understood to be about handing the business back to her in her role as General Manager. However, during the meeting, she was told that she would return on lesser terms and conditions in a role as "Resident Manager" and that her General Manager position would go to Mr D., who had been acting General Manager while the complainant was on maternity leave. According to the complainant, Mr A. said to her: "You should be relieved, there will not be as much pressure on you with a baby to look after." Mr A did not specify the lesser terms and conditions. The complainant protested that she was entitled to return to her old role and refused the new role. Mr A then said to her: "Forget this meeting happened, I will speak to Mr B. and ring you in the morning." The following morning, the complainant received a phone call instructing her to return to her old role, with unchanged terms and conditions.
4.13. However, on her return to work, the complainant found that both herself and her replacement Mr. D, who had previously been Deputy General Manager, had the title of General Manager and that there was confusion among the staff. The complainant felt that this undermined her authority with staff. According to the complainant, she received a phone call from a colleague during this time, where the colleague said; "I think they are going to stab you in the back, they were not expecting you back." In evidence, the complainant could not say for sure whether a return to the Deputy Manager Role had ever been envisaged for Mr D.
4.14. From all of the above, I find that the complainant has established a prima facie case of less favourable treatment in her terms and conditions of employment on the ground of gender, because she was pregnant, and that this has not been rebutted. In addition, I find that the complainant has established a separate prima facie case for less favourable treatment in her terms and conditions of employment on the ground of family status when her application for parental leave was refused, while she was previously accommodated with flexible working arrangements, including part-time work, on grounds of illness.
4.15. Regarding the complainant's intention to take parental leave, I accept that it would have been for a Rights Commissioner to investigate whether any breach of the Parental Leave Acts occurred with regard to the complainant's entitlements under those Acts and that I have no jurisdiction in the matter. However, these do not appear to have been in dispute. It is the respondent's reasoning for refusing the complainant parental leave (see paragraph 4.11 above) which raises the inference of discrimination and which has not been rebutted. Therefore the complainant is entitled to succeed in this aspect of her case.
Access to Promotion
4.16. With regard to her complaint of discrimination in access to promotion, the complainant's evidence was as follows: The respondent had had plans for some years to open a new hotel some five minutes walk from the hotel the complainant was managing. The plan was to have both hotels under joint management, and the complainant had been made aware of this by Mr A and Mr B. She also averred that she was told she would be their preferred candidate for the joined management position.
4.17. These intimations continued until May 2006, shortly before the complainant went on maternity leave, when she was told that Mr D. would oversee the opening of the new hotel, and three months later, she would take over the joined manager position.
4.18. However, when the complainant did return from her maternity leave, she learned that Mr D. had been appointed to that position. Since the new hotel was not ready for Mr D. to manage, he stayed on as General Manager of the hotel which the complainant used to manage for three more months, creating the awkward situation described in paragraph 4.16 above.
4.19. The complainant contends that this appointment process was not at all normal practice with the respondent. It would have been normal for an email to be sent out to all relevant staff, inviting applications. Any position would also have been advertised externally. An interview process would then follow. The complainant stated that this was the process she went through earlier in her career with the respondent, when she applied for another position within the respondent's group of hotels. The complainant states that she did raise the matter of not even being permitted to interview for the joined manager position with Mr A. and Mr. B., but that she did not receive a satisfactory response.
4.20. From all of the above, especially the manner in which the respondent departed from its normal recruitment and promotion procedures, and the manner in which it appointed Mr D. during the complainant's absence on maternity leave to a position for which the complainant had been viewed as a suitable candidate prior to her maternity leave, I find that the complainant has established a prima facie case of discrimination in access to promotion on the ground of gender, and that this has not been rebutted. The complainant therefore succeeds in this part of her complaint.
Victimisation
4.21. The complainant's potential victimisation relates to the manner in which her redundancy was effected. The complainant herself did not bring this complaint to the Tribunal, however, in the course of her evidence, I formed the opinion that it fell to be investigated and proceeded to do so based on the decision of Johnson J in Siobhan Long v. The Labour Court, Mairead Blackhall, and Powers Supermarkets Ltd t/a Quinnsworth, 1990 No 58 Judicial Review , 25 May 1990. In accordance with the principles of fair procedures and natural and constitutional justice, and following the Supreme Court in The State (Irish Pharmaceutical Union) v. Employment Appeals Tribunal [1987 ILRM 36], I informed the respondent of this and invited their observations on the matter. The respondent did not avail of this opportunity.
4.22. According to the complainant, the events that encompassed her being made redundant transpired as follows:
4.23. After returning to the workplace following her first pregnancy, the complainant found that she was pregnant again shortly afterwards. She had returned to her employment in March 2007, and advised her supervisor Mr B. of her new pregnancy in July 2007. In August 2007, the complainant had again begun to experience problems with her blood pressure, and her medical team had ordered bed rest for her. The respondent had experienced a transfer of undertaking, and the new owners wished to meet with the complainant. After two weeks of sick absence, the complainant was cleared by her doctors to attend a meeting with the new owners. The complainant had heard that Mr B. had been made redundant. However, from the letter the complainant had received from the management team of the new owner, Clarion Hotels Ireland, she had no reason to believe that it was for any other purpose then to meet her as a member of the respondent's team. The letter was produced in evidence. It reads as follows:
4.24. "Dear Denise,
Firstly, let me introduce myself, [...], Group Operations Manager for Clarion Hotels Ireland.
Following on from your discussion with [Mr B.] last Thursday my understanding is he has informed you that effective 10th August, the Comfort Inn Parnell Square is now being managed by the Clarion management team.
We had requested a meeting with you on Friday which you were unable to attend due to sickness hence the reason for this letter. The purpose of the meeting was to introduce ourselves to you and discuss the change in management to the Clarion team. We also with to commence consultation with you on a proposed re-organisation planned for the Comfort Inn, Parnell Square.
I would greatly appreciate if you could contact [Ms X], Group Director of Human Resources on [mobile phone number] at your earliest convenience to confirm when you are available to meet with her. Whilst I understand that you are currently unwell, it is a matter of priority that we discuss action plans directly with you as the General Manager with responsibility for the operation of the property.
I realise that you have a slipped disc and if it is not feasible for you to come into the city, [Ms X] will gladly come to meet you, to explain what is happening following the sale of 11 of our hotels last week."
4.25. When the complainant walked into the meeting, she was told right away: "We are here to make you redundant." According to the complainant, not even a greeting was afforded to her. In evidence, the complainant credibly described the manner in which things transpired as an "ambush". I found the complainant equally credible when she stated that during the entire meeting, she fought as hard as she could to keep her employment. When the complainant asked about the reasons for the redundancy, she was told that wages were too high. The complainant states that the wages in the hotel she managed were the best in the company. The complainant was further told that no full-time manager would be needed. The complainant then offered to work part-time, but still received a blank "no". The complainant was then told that the hotel she managed would be merged with another hotel, and when she asked to apply for that position, she was told: "You are pregnant, we need somebody to do the job." According to the complainant, another person was appointed General Manager while she was out on sick leave, and the hotel she used to manage continues in business to the present day with its own general manager.
4.26. This meeting in which the complainant learned of her redundancy occurred on a Friday, and the stress endured during the encounter caused the complainant renewed problems with her blood pressure. She had to be hospitalised for the entire weekend, as her medical team feared that the complainant might miscarry. Regardless of this medically critical situation, it is the complainant's evidence that Ms X attempted to phone, email, and text her the entire weekend, between five and six times per day. The complainant contacted Ms X to advise her that she would make contact when she was feeling better. Apart from that, the complainant's medical team forbade her to respond to Ms X.'s communications and put her on orders to relax as best as possible.
4.27. When the complainant was released from hospital on the following Tuesday, she continued to rest at home. On Thursday, her former supervisor, Mr B., called to her home and produced a letter for the complainant's signature, in which the complainant was offered the opportunity to go on maternity leave if she consented to waive any rights to further legal action in the matter. The complainant did have sight of the letter, but did not have a copy of it, as she refused to sign it and Mr B. took it away with him. However, the complainant's evidence in this regard is supported by a very similar letter by Ms X to the complainant, dated 30 August 2007, which refers to the complainant's pregnancy and in which it says: "we have however considered your particular case and at a considerable cost to us would be prepared to proceed on an agreed and amicable basis. We would be prepared to pay you your maternity benefit at 50% and keep you on the books until the end of your leave so you are also able to avail of your statutory maternity pay."
4.28. According to the complainant, she was given 24 hours to consider her position with regard to the letter which asked her to waive her legal rights. Mr B.'s visit had occurred on Thursday afternoon. By 12 noon the following Friday, the complainant received her redundancy papers by courier. A letter sent to the complainant, dated 31 August 2007, states, inter alia: "Denise, this is an unfortunate decision for you to experience and I am disappointed that you have chosen not to communicate with us to agree an alternative solution having considered your particular circumstances."
4.29. From the totality of the evidence outlined in paragraphs 4.21 to 4.28 above, I am satisfied that the respondent was, or became, aware that the complainant was pregnant when the meeting occurred in which the complainant was made redundant, and that the complainant's attempts to hold on to her job can therefore be subsumed under S. 74(2)(f) of the Acts, whereby victimisation occurs where adverse treatment occurs of an employee by his or her employer occurs as a reaction to "an employee having opposed by lawful means an act which is unlawful under this Act or the said Act of 2000 or which was unlawful under such repealed enactment". I am also satisfied from the correspondence between the parties that the respondent was aware that its actions could leave it in a potentially precarious legal position, as following EU Directive No. 92/85, it is trite law that woman who are pregnant are to be afforded special protection in employment and cannot be dismissed save in exceptional circumstances unrelated to their pregnancy. From the complainant's evidence, it does not appear that any exceptional circumstances were put to her at the meeting during which she was made redundant.
4.30. I therefore find that the way in which the respondent sought to put the complainant under pressure in terms of communications, and the way in which the respondent sought to pressurise the complainant into waiving her legal rights, and the manner in which the respondent attempts to place blame for communication difficulties on the complainant, at a time when the complainant was very seriously ill from a pregnancy-related condition, to be adverse treatment within the meaning of S. 74(2) and that this has not been rebutted. Accordingly, I find that the respondent has victimised the complainant contrary to S. 74(2) of the Acts, and in my opinion, has done so in a very serious manner.
5. Decision
5.1. Based on all of the foregoing, I find, pursuant to S. 79(6) of the Acts, that
(i) The respondent did discriminate against the complainant in relation to her conditions of employment contrary to S. 8(1) of the Acts, on the grounds of gender and family status;
(ii) The respondent did discriminate against the complainant in relation to access to promotion contrary to S. 8(1) of the Acts on the ground of gender and
(iii) The respondent did victimise the complainant contrary to S. 74(2) of Acts.
5.2. In accordance with S. 82 of the Employment Equality Acts 1998 to 2008, I therefore order that the respondent pay the complainant
(i) €50,000 in compensation for the discrimination endured and
(ii) €50,000 in compensation for her victimisation.
The awards take into account the fact that the complainant's discrimination persisted through two pregnancies and lasted for nearly a year and eight months, and the grievous manner in which the complainant found herself victimised at a time of serious illness. Each award represents slightly less than one year's salary of the complainant at the time when she was in the respondent's employment.
5.3. The awards are in compensation for the distress experienced by the complainant in relation to the above matters, and are not in the nature of pay, and therefore not subject to tax.
______________________
Stephen Bonnlander
Equality Officer
12 July 2010