EDA1023

Background

This is an appeal by Nail Zone Ltd against the decision of the Equality Tribunal in a complaint made by Regina Cruise under the Employment Equality Acts 1998-2008 (hereafter the Acts) and a cross appeal by Ms Cruise against that decision. The parties are referred to in this Determination using the designation prescribed by s. 77(4) of the Acts. Hence, Nail Zone Ltd is referred to as the Respondent and Ms Cruise is referred to as the Complainant.

The Complainant alleges that she was subjected to discriminatory treatment, harassment and constructive discriminatory dismissal on grounds of pregnancy. The complaint was investigated by an Equality Officer of the Equality Tribunal. The Equality Officer found that the Complainant had been discriminated against in respect to her conditions of employment. He found that she was not harassed and was not subjected to constructive discriminatory dismissal. The Equality Officer awarded the Complainant compensation in the amount of €10,000 for the discriminatory treatment which he found to have occurred.

The Respondent appealed against the finding that it had unlawfully discriminated against the Complainant. In the alternative the Respondent appealed against the quantum of compensation awarded. The Complainant appealed against so much of the Equality Officer’s decision as found against her in relation to her claim of harassment and constructive dismissal.

Position of the parties

The Complainant

The Complainant was employed by the Respondent as a nail technician. The Respondent carries on its business from a concession facility at a major Dublin department store. The Complainant commenced her employment with the Respondent in February 2005. At the times material to this case the Complainant worked an average 39 hour week and her hours of attendance were 9.30 am to 6.30pm on Tuesdays, Wednesdays and Thursdays and from 11am to 8pm on Fridays. She worked from 10am to 6pm on Saturdays, although there was some variation in those hours. Normally she did not work on Sundays or on Mondays.

In or about December 2005 the Complainant informed the Respondent that she was pregnant. Her first ante-natal appointment was on 24th January 2006. She told the Court that she was advised to rest due to high blood pressure and did not return to work after the appointment. Her next appointment was fixed for Tuesday 21st February 2006 and she advised the Respondent accordingly. The Complainant contends that the Respondent then changed her day-off to coincide with that appointment. The Complainant further contends that thereafter the Respondent’s attitude towards her deteriorated. She alleges that the Respondent subjected her to verbal abuse and that the method of computing her pay and holidays were changed. In evidence the Complainant said that her holiday entitlements, which had previously been calculated on the basis of 20 days per year, at eight hours per day, was changed to 8% of hours worked up to the holiday. She said that whereas she had previously been paid 8 hours pay in respect of public holidays this was changed to one-fifth of the hours worked in the relevant week. The Complainant said that when she queried this with the Respondent she was told that she was a “flexi-worker”, a designation which had not previously been ascribed to her.

The Complainant testified that when she discovered that her day off had been changed from Monday 20th February 2006 to Tuesday 21st February she changed the roster to the original date. She said that this was subsequently changed back by Ms Jennifer Lloyd to show her day off as being on Tuesday 21st so as to coincide which her hospital appointment. The Complainant raised the matter with Ms Jennifer Lloyd and Ms Louise Lloyd (who were the principals in the business) and was told by Ms Louise Lloyd that she was a “flexi” worker and that the Respondent was entitled to change her work pattern. The Complainant was then certified by her GP as unfit for work due to stress and she went on sick leave. She returned to work on 23rd February.

According to the Complainant when she returned to work Ms Jennifer Lloyd told her that Louise Lloyd wished to obtain details in writing of her intended maternity leave. She said that Ms Lloyd told her to state in the letter that she would return to work on a part-time basis. The Complainant said that at that stage she had not made any decision on her post maternity leave work arrangements but she drafted a letter in the terms suggested by Ms Lloyd and stated that she would be returning on a part-time basis.

The Complainant told the Court that while absent on sick leave she received nine missed calls from Ms Jennifer Lloyd in one day and an abusive message was left on her voice mail. The Complainant told the Court of another incident that occurred in the course of a telephone call she received from Ms Jennifer Lloyd. She believed this to be a conference call as Ms Louise Lloyd joined in the conversation. In the course of this call the Complainant raised issues concerning the way in which she was being treated by the Respondent. The Complainant said that a heated discussion ensued in the course of which Ms Louise Lloyd who was present with Ms Jennifer Lloyd, and who joined in the discussions, called the Complainant a “stupid cow”

According to the Complainant, in the course of a consultation in relation to her pregnancy, her GP had informed her that Ms Jennifer Lloyd had made contact with his surgery to enquire about her (the Complainant’s) medical condition. The Doctor has assured the Complainant that he had refused to take the call from Ms Lloyd.

The Complainant also alleged that she had been assigned additional work and, on one occasion, she was rostered to work on Sunday. According to the Complainant she raised her dissatisfaction at the way she was being treated with Ms Jennifer Lloyd. Ms Lloyd told her that these matters would have to be raised with her sister and co-principal of the business, Louise Lloyd. The Complainant gave evidence of having made several attempts to meet with Louise Lloyd in relation to her grievances. She said that her requests were either ignored or appointments were made to meet with her but not subsequently kept by Ms Lloyd.

She contends that by reason of the Respondent’s conduct toward her she was forced to take maternity leave earlier than she had intended. She further claims that by reason of the Respondent treatment of her during her pregnancy she could no longer work for the Respondent and by letter dated 31st August 2006 she wrote to the Respondent terminating her employment citing several incidents of what she regarded as unacceptable treatment.

The Complainant accepted that Ms Jennifer Lloyd subsequently wrote to her, by letter dated 11th September 2006, inviting her to a meeting with to discuss her proffered resignation and requesting an opportunity to address the grievances to which she had referred in her letter of resignation. The Complainant told the Court that she declined this invitation, as she could no longer deal with the Respondent because of the way in which she had been treated.

The Respondent

The Respondent denies that the Complainant was discriminated against, harassed or constructively dismissed in the manner alleged or at all. It contends that while, in general, it had a policy of providing two weeks notice of a change to established working patterns, it retained the right to change roster where the exigencies of he business so require. It further accepts that the Complainant was a full-time employee but contends that she was required to work five days over seven and it had a right to change her day-off when this was necessary in order to meet the needs of the business. It contends that this was explained to the Complainant both at interview and during her induction training. The Respondent further accepts that the Complainant was not given a written statement of her conditions of employment but claims that these were well known to her.

The Respondent contends that the Complainant’s day off was changed from 20th February to 21st February 2006 (the date of her anti-natal appointment) in order to accommodate another employee who had requested time off for child care reasons. The Respondent likewise accepts that the Complainant was rostered to work on Sunday 2nd April 2006 but said that this arose because another employee, who normally worked on Sundays was on leave. It denies that either change was influenced by the Complainant’s pregnancy. The Respondent claimed that the Complainant had frequently worked on Mondays and details in that regard where put in evidence.

In relation to the allegations of harassment the Respondent denies that the attitude of the principals of the business towards the Complainant changed after she informed them of her pregnancy. In relation to the claim of constructive dismissal the Respondent contends that the Complainant made no complaint concerning her treatment until she submitted her resignation in writing. It says that it then invited her to reconsider her position and invited her to a meeting to discuss the matter, which invitation she declined.

In evidence Ms Jennifer Lloyd told the Court that she changed the Complainant’s day off to 21st February 2010 because the Complainant indicated that she wished to have that day off. She denied that the Complainant or her partner had informed her that the Complainant’s next hospital appointment was on that day. This witness said that another employee had asked for time off on Monday 20th in order to fulfil a parental commitment and she needed the Complainant to cover that day. Ms Lloyd also told the Court that when she learned that the Complainant wanted the time to attend an anti-natal appointment she changed her day off back to the Monday. According to Ms Lloyd she did not inform the Complainant that she had changed the day back to the Monday because she was out sick but she did inform the Complainant’s Mother of this change.

Ms Lloyd accepted that she contacted the offices of the Complainant’s GP some time after the Complainant submitted a medical certificate dated 3rd April 2006. According to the witness she only spoke to the receptionist for the purpose of clarifying if the medical cert covered one week or one day. The witness said that she could not decipher what was written on the certificate. She subsequently wrote to the Complainant asking for a medical certificate in respect of the remainder of that week.

Ms Lloyd denied that her attitude towards the Complainant changed after she learned of her pregnancy. She said that they remained on good personal terms throughout and that she had been a guest in the Complainant’s home and had given her Christmas presents. Ms Lloyd denied that she has persistently phoned the Complainant while she was on sick leave or that she had left an abusive message on her voice mail.

Ms Lloyd accepted that her sister, Ms Louise Lloyd, had used the expression “you stupid cow” while she (the witness) was engaged in a telephone conversation with the Complainant. According to Ms Lloyd this was not a conference call but was made on her mobile phone which she was being driven in her sisters car. She said that this expression was directed at the driver of a car which had pulled into their path and was not in reference to the Complainant. In cross-examination the witness accepted that in earlier correspondence with the Equality Authority and in the Respondent’s initial submissions to the Equality Tribunal Ms Louise Lloyd has persistently denied having uttered this expression at all.

Ms Lloyd also accepted that the first time on which she had mentioned informing the Complainant’s mother that the Complainant’s day off had been changed back to Monday 20th February 2006 was in answering a question from a member of the Court. She accepted that no such evidence had been tendered to the Equality Officer. The witness further accepted that the Mondays on which the Complainant had previously worked were before the agreement was reached, in August 2005, providing for the giving of two weeks’ notice of a change in rosters.

Ms Emma Beaman gave evidence concerning the method used to calculate the holiday pay of the Respondent’s employees. Ms Beaman is employed by CD Mullock & Co who are the Respondent’s accountants and provide a payroll service for the Respondent. Ms Beaman is an accountant and is secretary of CD Mullock & Co. The import of this witnesses evidence was that public holidays had always been calculated by dividing the hours worked by the employee in the relevant week by five. In the case of annual leave the formula used was to pay 8% the employee’s earnings in respect of hours worked in the period preceding the annual leave. The witness said that this was the method consistently used and no change had been made in the method of computation in the case of the Complainant.

The witness told the Court that she had never been asked to explain this method of computation by either the Respondent or any of its employees

The Applicable Law

Discrimination generally

In a line of authorities, starting withDekkerv. Stichting Vormingscentrum voor jonge Volwassen (VJV-Centrum)[1991] IRLR 27 the ECJ has made it clear that, since pregnancy is a uniquely female condition, any adverse treatment afforded to a woman in consequence of her pregnancy constitutes direct discrimination on grounds of her gender. Furthermore, it is clear that the Complainant’s pregnancy need not be the only or the dominant reason for the impugned treatment. It is sufficient if it is anything other than a trivial influence for what is complained of (see dictum of Peter Gibson LJ inWong v Igen Ltdand others[2005] IRLR 258).

Harassment

Section.14A (7) of the Acts, in elation to harassment provides as follows: -

• "(a)In this section —
  • (i) references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds, and

    (ii) references to sexual harassment are to any form of unwanted verbal, non-verbal or physical conduct of a sexual nature,

  (b) being conduct which in either case has the purpose or effect of violating a person's dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.

  (c) Without prejudice to the generality of paragraph (a) , such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material."

Constructive dismissal

Section 2(1) of the Act defines a dismissal as including:

• “[T]he termination of a contract of employment by the employee (whether prior notice of termination was or was not given to the employer) in circumstances in 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….”

InA Worker (Mr O) v An Employer (No 2)[2005] 16 ELR 132 this Court extensively considered the circumstances in which this provision can apply. Here the Court said: -

• "This definition is practically the same as that contained at section 1 of the Unfair Dismissals Acts 1977 –2001 and the authorities on its application in cases under that Act are apposite in the instant case. It provides two tests, either or both of which may be invoked by an employee. The first test is generally referred to as the “contract” test where the employee argues “entitlement” to terminate the contract. The second or “reasonableness” test applies where the employees asserts that in the circumstances it was reasonable for him or her to terminate the contract without notice.
  
  The contract test was described by Lord Denning MR inWestern Excavating (ECC) Ltd v Sharp [1978] IRLR 332as follows:
  
  • “If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself discharged from any further performance”
  
  This passage describes a situation in which an employer commits a repudiatory breach of contract. In such circumstances the employee is entitled to accept the repudiation and consider him or herself dismissed. However not every breach of contract will give rise to repudiation. It must be a breach of an essential term which goes to the root of the contract. This is a stringent test which is often difficult to invoke successfully.
  
  There is, however, the additional reasonableness test which may be relied upon as either an alternative to the contract test or in combination with that test. This test asks whether the employer conducts him or her affairs in relation to the employee, so unreasonably that the employee cannot fairly be expected to put up with it any longer. Thus, an employer’s conduct may not amount to a breach of contract but could, none the less, be regarded as so unreasonable as to justify the employee in leaving. Further, the employer may commit a breach of contract which may not be of such a nature as to constitute repudiation, but is so unreasonable as to justify the employee in resigning there and then.

• Finally, the authorities indicate 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."

Burden of proof

Section 85A of the Acts provides for the allocation of the burden of proof in cases under the Acts. It provides that the Complainant must first establish facts from which discrimination may be inferred. If those facts are established on the balance of probabilities, and they are regarded by the Court as sufficiently significant to raise the inference contended for, the burden of proving that the principle of equal treatment has not been infringed in relation to the Complainant shifts to the Respondent. The Respondent must then discharge that probative burden on credible evidence and on the balance of probabilities.

The facts

In arriving at its determination in this appal the Court has taken account of all the evidence adduces including various documents with which it was furnished. It is noted that Ms Louise Lloyd, against whom many allegations were directed by the Complainant, was not called to give evidence. Ms Hynes, Solicitor for the Complainant, also drew the Court’s attention to the evidence given before the Equality Tribunal by another employee of the Respondent, Ms Zane Bloha. Ms Bloha had given evidence at first instance on behalf of the Respondent. In his decision the Equality Officer recorded that in the course of her evidence Ms Bloha had told him that her pay in respect of annual leave and public holiday had always been computed on the basis of eight hours pay per day. The Respondent did not dispute the veracity of the Equality Officer’s record of this evidence.

There was a sharp difference in the evidence tendered by the Complainant and that of Ms Lloyd on almost every material point in issue in this case. In evaluating the evidence the Court found the Complainant’s evidence credible and consistent. The main evidence tendered on behalf of the Respondent was somewhat inconsistent and less forthright. Overall the Court found the Complainant’s recollection of material events more reliable.

The Court is satisfied that the Respondent was aware that the Complainant had a hospital appointment in relation to her pregnancy on 21st February 2006. In light of that knowledge her day-off was changed to coincide with that visit. The Court is further satisfied that the Respondent had previously agreed to give two weeks notice of any change in the Complainant’s attendance pattern but nonetheless made this change without notice to or consultation with the Complainant. The Court is further satisfied that the Respondent reclassified the Complainant as a “flexi” worker and relied on this classification to alter her attendance pattern. While the position regarding the method of calculating her holiday pay is less clear it is accepted that another employee of the Respondent told the Equality Officer that her holiday pay was calculated by the method which the Complainant claims was used in her case before she was reclassified as a flexi worker. This employee, who gave evidence on behalf of the Respondent before the Equality Tribunal, was not tendered in the course of the appeal.

The Respondent accepts that it contacted the Complainant’s GP in relation to the medical certificate dated 3rd April 2006. There was a sharp difference between the parties on what the purpose of that contact was. Neither the Doctor nor the receptionist to whom Ms Lloyd spoke was called to give evidence. The Complainant told the Court that she was informed of this contact by her Doctor who said that it was for the purpose of obtaining information on her medical condition. It is clear that the Complainant could only have become aware of this contact from her Doctor. It is also clear that he considered it of sufficient significance to bring it to the Complainant’s attention. The Respondent’s explanation for this contact was that she thought the certificate was for one day and she merely sought conformation of the period which it covered. The Court finds this explanation unconvincing.

The Court was provided with a copy of the medical certificate and it clearly specified in legible longhand that the Complainant was unfit for work for one week. As a matter of probability the Court is satisfied that the Respondent’s contact with the GP went beyond merely enquiring as to the duration to which the certificate related.

Every employer is obliged to respect the privacy of its employees and this obligation is properly to be regarded as an implied condition of employment. The Court is satisfied that the Respondent sought to violate the Complainant right to privacy in contacting her Doctor and that this amounted to a determent in terms of her conditions of employment.

With regard to the incident in which the Complainant claims to have been subjected to verbal abuse by the Respondent, the Court cannot accept that the words uttered were directed other than at the Complainant. The Court also accepts that the Respondent made persistent telephone calls to the Complainant while she was on sick leave and that the Respondent left an abusive message on her voice mail. The Court is further satisfied on the evidence that the Respondent developed a dismissive attitude toward the Complainant and refused, on several occasions, to meet with her to discuss matters of importance to the Complainant relating to her treatment and her conditions of employment.

At the material time the Complainant was pregnancy and was suffering from stress for which she was being treated with anti-depressant medication. This was known to the Respondent. In these circumstances the Court accepts that the conduct of the Respondent towards the Complainant had the effect of violating her dignity and created a hostile environment for her. The Court accepts that this conduct amounted to harassment within the statutory meaning.

In relation to the termination of the Complainant’s employment the Court has come to the conclusion, on the evidence, that this claim cannot succeed. While the Court has accepted that the Respondent’s conduct toward the Complainant was unacceptable she was not left without an alternative means of ameliorating the situation. After she indicated her intention to resign, and having formally recorded her grievances, the Respondent offered to meet with her to discuss these matter. The Court has no doubt that the Respondent’s letter was written in the knowledge that it was in some difficulty arising from the communications which it had received from the Equality Authority. Nonetheless, the Respondent offered the Complainant an opportunity which may have assuaged her concerns at returning to work for the Respondent. The Court has come to the view that the Complainant was unreasonable in refusing to meet with the Respondent and to allow it an opportunity to address the issues which she had raised. Accordingly the claim of constructive dismissal must fail.

Causal Connection.

In order to come within the purview of the Acts the discrimination and harassment which the Court has found to have occurred must be causally connected to the Complainant’s pregnancy and therefore to her gender. The facts found by the Court are of sufficient significance to raise an inference that they are so connected. It is therefore for the Respondent to prove that its treatment of the Complainant was unconnected with her pregnancy. The Court is satisfied that the Respondent has failed to discharge that probative burden.

Determination

Accordingly the Court finds that the Complainant was discriminated on ground of her gender in terms of her conditions of employment and by being subjected to harassment.

The Equality Officer awarded the Complainant compensation in the amount of €10,000 for the acts of discrimination in terms of her conditions of employment. The Court does not consider this award to be excessive in the circumstances of this case. According the Court upholds that award. The Court has, in addition, found that the Complainant was subjected to harassment within the meaning of s.14A of the Acts. The Court awards the Complainant further compensation in the amount of €10,000 in respect of the harassment.

The Respondent here in is directed to pay the Complainant total compensation in the amount of €20,000. No element of this award is in respect to pecuniary loss.



Signed on behalf of the Labour Court



Kevin Duffy
10th November, 2010______________________
DNChairman



NOTE

Enquiries concerning this Determination should be addressed to David P Noonan, Court Secretary.