EQUALITY OFFICER'S DECISION NO: DEC-E/2010/078
PARTIES
MS. A
(REPRESENTED BY A FIRM OF SOLICITORS)
AND
A HOTEL
(REPRESENTED BY A FIRM OF SOLICITORS)
File No: EE/2007/383
Date of issue 21 May, 2010
Headnotes: Employment Equality Acts, 1998-2007 - sections 6,8 and 14A -gender- family status- discriminatory treatment - harassment -sexual harassment - burden of proof.
1. DISPUTE
This dispute involves a claim by a complainant that she was (i) discriminated against by her employer ("the respondent") on grounds of gender and family status, in terms of section 6(2) of the Employment Equality Acts, 1998-2007 and contrary to section 8 of those Acts following her return to work from maternity leave in September, 2006 and (ii) harassed by the respondent on grounds of gender and family status, in terms of section 6(2) of the Employment Equality Acts, 1998-2007 and contrary to section 14A of those Acts. The complainant also referred a complaint of victimisation in terms of section 74(2) of the Acts but withdrew this element of her complaint at the Hearing. The respondent rejects the complainant's assertions in their entirety.
2. BACKGROUND
2.1 The complainant worked as Food Services Manager with the respondent from June, 2004 until May, 2007 when she resigned from her employment. She states that the working relationship between her and Mr. F (the hotel's General Manager) was a good one from the start of her employment but that this changed dramatically following her return to work from maternity leave in September, 2006. She asserts that after this time she was (i) subjected to excessive and onerous working hours by Mr. F, (ii) the victim of sexist and inappropriate comments by Mr. F and (iii) was generally undermined, isolated and ostracised in the workplace by Mr. F and submits that the alleged treatment constitutes less favourable treatment and/or harassment of her on the grounds cited, contrary to the Acts. The respondent denies the complainant's assertions.
2.2 The complainant referred a complaint under the Employment Equality Acts, 1998- 2007 to the Equality Tribunal on 26 July, 2007. In accordance with her powers under the Acts the Director delegated the complaint to the undersigned - Vivian Jackson, Equality Officer, for investigation, decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. My investigation of the complaint commenced on 28 August, 2009 - the date the complaint was delegated to me. Submissions were received from both parties and a Hearing on the matter took place on 24 February, 2010
3. SUMMARY OF COMPLAINANT'S CASE
3.1 The complainant states that she was employed by the respondent as a Food Services Manager from June, 2004 until 19 May, 2007, when she resigned her employment of her own volition. She states that from the outset of her employment she worked well in excess of the statutory permitted weekly limit but that she did not raise any issue with the respondent about this because she had some flexibility in her attendance pattern. She adds that she worked a Wednesday-Sunday pattern with Monday/Tuesday off and that these arrangements were agreed with Mr. F and it suited both parties. The complainant states that she continued with this attendance pattern until she went on maternity leave in March, 2006. She adds that she met with Mr. F in mid-August, 2006 prior to her return from maternity leave to discuss her attendance pattern on her resuming work. She adds she informed him at this meeting that she was willing to resign if mutually acceptable hours could not be agreed. She states that Mr. F acknowledged she would be unable to work the hours she had prior to her maternity leave, advised her that the "Directors were anxious to keep her" and her agreed that she would be rostered for 40 hours per week with the same days off as previously.
3.2 The complainant states that she returned to work on 1 September, 2006 and things were fine for the first few weeks. She adds that at the end of that month things began to change and she started to be given the last shifts at the weekends which required her to remain on the premises until 2am-3am and report for duty 5-6 hours later. She adds that on one such evening when she was on duty Mr. F arrived back to the hotel late with friends and demanded that she re-open the bar, in the course of which he made derogatory comments about her to those present. On another such occasion in early October, 2006 she received a call advising her that her child had been taken to hospital. The complainant states that Mr. F refused to allow her to leave the premises in circumstances where he could have provided cover for her until the function was over, although he had allowed other employees such latitude previously. The complainant states that from that time forward Mr. F began to make derogatory comments to her and about her when in the presence of others, which were related to the fact that she had a child. In the course of the Hearing the complainant gave examples of these comments as follows - "double check the menus because her (the complainant's) head is scatty since she had the baby and she probably has them arseways", "is she boring you with baby stories", "she will be pregnant again after Christmas", and "this is like the Barney Show". The complainant states she informed Mr. F that she found his comments inappropriate and offensive and he replied "sure its only the laugh" and continued to make them until the complainant went on sick leave at the end of March, 2007.
3.3 The complainant states that Mr. F also made comments which were sexually offensive to her and that this behaviour occurred over the same period. In the course of the Hearing the complainant gave examples of these comments as follows - "motherhood was the great contraception because once a woman had a child she was no longer interested in sex", "women were only good for one thing - lying on their backs with their legs in the air". The complainant stated that when she approached Mr. F and told him she found his comments offensive he dismissed her replying that "he was speaking from experience" and made a joke of the matter. The complainant further states that Mr. F was also prone to making comments which were offensive to her as a woman - "women become lazy when they become pregnant". It is submitted on the complainant's behalf that the behaviour of Mr. F as detailed in this and the previous paragraph constitutes sexual harassment and harassment of the complainant on the basis of her gender and family status contrary to the Acts. It is further submitted that the respondent had neither a Grievance Procedure nor an Harassment Policy in existence at the time and it cannot therefore rely of the defence available at section 14A(2) of the Acts.
3.4 The complainant states that the actions of Mr. F resulted in her feeling isolated, undermined and ostracised in her place of work. The complainant gave examples of this behaviour as follows (i) requiring her to obtain his agreement for small pay rises for staff where she had previously had such authority, (ii) insisting she renegotiate prices for weddings (with customers) over small differences in circumstances where she had previously had such discretion, (iii) failing to pay her an annual bonus in respect of 2006 in circumstances where other Managers received such a bonus and (iv) rostering her on duty for the night of the Christmas party and when she asked him why this had happened he replied "you have a child now, you wouldn't want to go". The complainant states that the final straw arose on 14 March, 2007. She adds that she had been working that day and was approached by another Manager (Mr. A) at around 10pm and told that she was to report for duty at 7am the next morning for breakfast service as Mr. F "did not want extra staff on". The complainant states that she was not rostered to start work until 4pm that day and therefore did not attend work until that time. She adds that on her arrival Mr. F summoned her to his office. He told her that the nature of the business was that it could "change at the drop of a hat" adding that her attendance pattern no longer suited, that he was assuming responsibility for compiling the duty managers' roster (a task heretofore completed by her) and that "anyone who doesn't like this knows where the door is". The complainant states that subsequent to this meeting she went on certified sick leave until she resigned her position on 19 May, 2007. It is submitted on her behalf that this amounts to further examples of harassment of her contrary to the Acts.
3.5 The complainant states that there was no Grievance Procedure in existence during her period of employment. She adds Mr. F had always indicated to staff that he was also a Director of the hotel holding company as well as General Manager. She adds that during 2006 another employee had made a complaint about Mr. F to one of those Directors and he (Mr. F) told staff that they were "to bring all issues to him as they (the two Directors) were silent partners". She states therefore that there was no one to whom she could turn to complain about Mr. F, that she was fearful of reporting her concerns to either of the other two Directors and consequently she did not do so.
4. SUMMARY OF RESPONDENT'S CASE
4.1 The respondent rejects the complainant's in their entirety. It states that the complainant returned to work in September, 2006 after a period of maternity leave on the same terms and conditions she had prior to maternity leave. It denies that she was required to work excessive hours, either before or after her maternity leave, but accepts that given the nature of the hospitality industry and the fact that she was a member of Management, there were occasions when she might have had to remain after her normal finish time. It accepts that a meeting between the complainant and Mr. F took place sometime in August, 2006 but states that the only issue the complainant wished to clarify was that she would continue to have Monday and Tuesday off - and the respondent was perfectly happy to accede to this request.
4.2 The respondent rejects the complainant's assertions that she was subjected to discriminatory treatment and/or harassment by Mr. F following her return to work from maternity leave. In particular it denies the alleged events on and following 14 March, 2007. The respondent states that the complainant never made any formal complaint to it about the alleged treatment of her and denies that there were no formal procedures in place to either prevent or enable the complainant to report her concerns formally to it. However, in the course of the Hearing it was confirmed on the respondent's behalf that this assertion was incorrect and it was accepted that at the relevant time the respondent did not have either a Grievance Procedure or a Policy on Harassment in operation. It was argued that notwithstanding this had the complainant made either of the other two Directors aware of her situation they would have been dealt with. It is submitted that in the absence of any such knowledge the respondent cannot be held liable for the alleged treatment of her.
5. CONCLUSIONS OF EQUALITY OFFICER
5.1 The issues for decision by me are whether or not the respondent (i) discriminated against the complainant on grounds of gender and family status, in terms of section 6(2) of the Employment Equality Acts, 1998-2007 and contrary to section 8 of those Acts following her return to work from maternity leave in September, 2006 and (ii) harassed the complainant on grounds of gender and family status, in terms of section 6(2) of the Employment Equality Acts, 1998-2007 and contrary to section 14A of those Acts. In reaching my Decision I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence presented at the Hearing. In line with the Tribunal's normal approach concerning complaints involving allegations of sexual harassment I have anonymised the identities of the parties involved.
5.2 Before dealing with the substantive issues of this complaint I consider it necessary to comment on a matter that arose at the outset of the Hearing. In accordance with the standard practice of the Tribunal the parties' representatives were given written notice of the Hearing arrangements. This notice issued on 7 September, 2009, some five months in advance of the Hearing date. On the day of the Hearing the solicitor for the respondent attended alone. He advised that nobody from the respondent would be attending that day as the Directors involved were attending a social event. He added that he was not seeking an adjournment at this late hour, that he had sufficient instruction and he was ready to proceed. When I asked how these circumstances came about he was unable to offer any further explanation on the matter. In the circumstances I decided to proceed with the Hearing.
5.3 Section 85A of the Employment Equality Acts 1998- 2007 sets out the burden of proof which applies to claims of discrimination. It provides, in effect, that where facts are established by or on behalf of a complainant from which discrimination may be inferred, it shall be for the respondent to prove the absence of discrimination. The test for applying that provision is well settled in a line of Decisions of this Tribunal and the Labour Court and it requires the complainant to prove, on balance of probabilities, the primary facts upon which she relies in seeking to raise an inference of discrimination. It is only if this initial burden is discharged and the Equality Officer is satisfied that the facts as established are of sufficient significance to raise a presumption of discrimination, that the burden of proving that there was no infringement of the principle of equal treatment passes to the respondent. If the complainant does not discharge the initial probative burden required her case cannot succeed.
5.4 The complainant contends that she worked in the region of 55 - 60 hours per week prior to her commencing maternity leave. She takes no issue with this and states that this was a feature of the working relationship prior to her commencing her maternity leave and that she was agreeable to work those hours. The focus of her complaint is that she informed her employer prior to returning from maternity leave that she would be unable to work those hours on her return and that Mr. F agreed to accommodate this. In the course of the Hearing the complainant stated that these arrangements prevailed for two/three weeks after she resumed work but that the old attendance pattern resurfaced and I accept the complainant's uncontested evidence in this regard. However, in order to establish a prima facie case of discrimination under the employment equality legislation the complainant must demonstrate that she suffered a difference in treatment as compared with others in a similar situation and that this treatment was influenced in some way (other than in a trivial manner) by the discriminatory ground cited. At the Hearing the complainant stated that other managers were expected to and indeed attended work for periods in excess of their contractual hours. She was not therefore treated differently to those employees - who were in a similar situation to her - albeit that an avenue of redress may arise under the organisation of working time legislation on this issue. Accordingly, I find that the complainant has failed to establish a prima facie case of discrimination in respect of this element of her complaint.
5.5 The complainant states that shortly after her returned to work she was rostered to work an evening shift and was overseeing a function in the hotel. She adds that she received a phone call advising that her young child had been taken to hospital and that when she asked Mr. F permission to leave work he refused this request and she had to remain in work until the function was over. I note that in the course of the Hearing the complainant stated he (Mr. F) had allowed other employees time off in similar circumstances. I accept that complainant's evidence in this regard. However, whilst she may have been treated differently it was not on the basis of her family status as the other employees were also seeking time off for family related reasons. Consequently, the treatment of her cannot be discriminatory, although it appears quite harsh and I am satisfied that it demonstrates Mr. F's disposition toward the complainant.
5.6 The complainant asserts that the respondent (Mr. F) harassed her on grounds of gender and family status contrary to section 14A of the Employment Equality Acts, 1998 - 2007. In the course of the Hearing the complainant gave examples of the alleged comments and actions of Mr. F towards her which she submits constitute harassment of her. This evidence was, in general, uncontested by the respondent's representative, who in any event had no direct evidence of its own to present in this regard and where it had I prefer, on balance, the complainant's version of events, based on her direct evidence. Section 14A of the Acts defines harassment as follows:
"...unwanted conduct 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...
Such unwanted conduct may consist of acts, requests, spoken words, gestures......"
5.7 The comments and behaviour of Mr. F towards the complainant are detailed at paragraphs 3.2 - 3.4 above and I do not propose to recite them again. However, before examining them further one other matter requires attention. I note it is accepted by the respondent that Mr. F was either (a) the complainant's employer (if he was a Director of the company) or (b) was himself an employee in his role of General Manager. In either circumstances it is clear that section 14A(1) of the Acts fixes liability for any harassment or sexual harassment of the complainant with the respondent . I now turn to the substantive allegations. I have carefully considered the nature and content of the comments and behaviour attributed to Mr. F by the complainant and I have no hesitation in finding that they constitute unlawful harassment of her on grounds of gender and family status in that they are undoubtedly offensive and humiliating to her as both a woman and a mother. Moreover, I find that some of them constitute sexual harassment of her in that they clearly contain sexual undertones which have the effect of violating the complainant's dignity. All of the incidents of harassment complained of occurred in the course of the complainant's employment. It follows therefore that the complainant has established a prima facie case of (i) harassment on grounds of gender and family status and (ii) sexual harassment contrary to section 14A of the Acts and the respondent must satisfy the Tribunal that it took such steps as are reasonably practicable to avail of the defence at section 14A(2) of the Acts.
5.8 Section 14A(2) of the Acts provides a mechanism for the respondent to avoid liability for harassment/sexual harassment under section 14A of the Acts. The Labour Court has in a number of Determinations set out the minimum required of an employer to avail of the statutory defence. It has stated, inter alia, that it is essential for the respondent to show it had in place, at the time at which the harassment occurred, arrangements intended to prevent and deal with such conduct and that the policy was effectively communicated to employees. In the course of the Hearing it was confirmed by the respondent's legal representative that it had no such policy in operation at the time but that it was open to the complainant to bring her complaint to the attention of the other Directors and they would have addressed her concerns. The fact remains that the respondent failed to have in place the minimum requirements - as set out by the Labour Court - to avail of the statutory defence and accordingly it cannot do so in the instant case. The complainant is therefore entitled to succeed in this element of her complaint.
6. DECISION OF THE EQUALITY OFFICER
6.1 I have completed my investigation of this complaint under section 79(3)(A) of the Employment Equality Acts, 1998-2008 and in accordance with section 79(6) of those Acts I issue the following decision. I find that -
(i) the complainant has failed to establish a prima facie case of discrimination of grounds of gender and family status, in terms of section 6(2) of the Employment Equality Acts, 1998 - 2007 and contrary to section 8 of those Acts in relation to her conditions of employment.
(ii) the complainant was harassed by the respondent on of grounds of gender and family status, in terms of section 6(2) of the Employment Equality Acts, 1998 - 2007 and contrary to section 14A of those Acts.
(iii) the complainant was sexually harassed by the respondent contrary to section 14A the Employment Equality Acts, 1998 - 2007.
6.2 This Tribunal is obliged, where it has found unlawful behaviour contrary to the Acts to have occurred, to award redress which is proportionate, effective and dissuasive. In the instant case the complainant was subjected to a particularly offensive and humiliating work environment for a number of months and this behaviour was perpetrated by the most senior employee in the organisation - the General Manager. I consider that the redress which I award must reflect these factors. I therefore order, in accordance with my powers under section 82 of the Employment Equality Acts, 1998 - 2008:
(i) that the respondent pay to the complainant the sum of €40,000 (which equates to approx 1 year' s salary) for the distress suffered by the complainant and the effects of the discrimination and harassment on her. This compensation does not contain any element of remuneration and is therefore not subject to PAYE/PRSI. I further order that this compensation should attract interest at the rate applicable under Section 22(1) of the Courts Act, 1981 and that this interest accrues from 26 July, 2007 - the date of referral of the complaint to this Tribunal - in accordance with section 82(5) of the Employment Equality Acts, 1998-2008;
(ii) that the respondent develop (if it has not already done so) a code of Practice on Harassment on all of the nine discriminatory grounds covered by the Employment Equality Acts, 1998-2008, which is modelled on the Employment Equality Act, 1998 (Code of Practice)(Harassment) Order, 2002 and that this Code should be in place within three months of the date of this Decision;
(iii) that a copy of this Code should be circulated to all existing and new staff (on arrival) and that staff are fully acquainted with its contents.
(iv) that all staff who have staff management functions receive appropriate training in the policy and that this training is kept under review in light of development/best practice in the area.
_______________________________________
Vivian Jackson
Equality Officer
21 May, 2010