THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2011
Decision - DEC-E2011-251
PARTIES
Patrycja Wojda
(represented by Richard Grogan
& Associates, Solicitors)
and
Sladeton Limited t/a The Burlington Hotel
(represented by Penninsula Business Services Limited)
File References: EE/2009/882
Date of Issue: 21 December, 2011
Headnotes: Employment Equality Acts, 1998 to 2008 - discriminatory treatment - gender - marital status - race - access to employment - conditions of employment - harassment - discriminatory dismissal - failure to establish a prima facie case of discrimination
1. Dispute
1.1 This case concerns a complaint by Ms. Patrycja Wojda, who is a Polish national, that she was discriminated against by Sladeton Limited t/a Burlington Hotel on the grounds of gender, marital status and race contrary to section 6(2)(a), (b) and (h) of the Employment Equality Acts, 1998 to 2008 in terms of access to employment, conditions of employment, harassment and discriminatory dismissal.
2. Background
2.1 Ms. Partycja Wojda referred a complaint under the Employment Equality Acts, 1998 to 2008 to the Director of the Equality Tribunal on 1 December, 2009. In accordance with his powers under section 75 of the Employment Equality Acts, the Director delegated the cases on 8 November, 2011 to me, Enda Murphy, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions under Part VII of the Employment Equality Acts, 1998 to 2008. This is the date I commenced my investigation. A written submission was received from the complainant on 13 April, 2010 and from the respondent on 28 May, 2010. As required by section 79(1) of the Acts and as part of my investigation, I proceeded to hearing on 23 November, 2011. An independent interpreter, provided by the Tribunal, was in attendance. The claims in relation to discriminatory dismissal and harassment were withdrawn by the complainant at the oral hearing of the complaint.
3. Summary of the Complainant's case
3.1 The complainant, Ms. Patrycja Wojda, who is a Polish national, was employed by the respondent in its hotel as a Food and Beverage Assistant on 14 August, 2009. The complainant stated that during the initial months of her employment she worked mainly on the breakfast shift in the 'corporate breakfasts' section which was located on the sixth floor of the hotel. The complainant stated that she informed the respondent on 12 October, 2009 that she was pregnant and she claims that her name was subsequently removed from the work roster for the week commencing 19 October, 2009. The complainant stated that she was moved from the 'corporate breakfasts' section of the hotel to the restaurant downstairs after she announced her pregnancy and that her hours were also reduced at that juncture. The complainant claims that her removal from the roster during the week commencing 19 October, 2009 and the subsequent reduction in her hours of work was directly attributable to her pregnancy.
3.2 The complainant stated that she contacted her solicitor regarding this matter and that a complaint was referred to the Equality Tribunal on 1 December, 2009. The complainant submitted that the problem was resolved immediately after the matter was referred to the Tribunal. The complainant denies the respondent's contention that she failed to comply on several occasions with its requests to have a risk assessment carried out after she had announced her pregnancy. The complainant claims that she participated in the risk assessment when requested to do so by the respondent. The complainant stated that she commenced her period of maternity leave on 26 May, 2010 and subsequently returned to work following maternity leave in December, 2010.
3.3 In summary, the complainant submitted that she was removed from the work roster and that her hours were reduced after she had informed the respondent of her pregnancy and she claims that this amounts to discrimination against her on the grounds of her gender, marital status and race contrary to the Employment Equality Acts.
4. Summary of the Respondent's case
4.1 The respondent submitted that the complainant was employed in the capacity of Food and Beverage Assistant on 14 August, 2009. The complainant was issued with a 'casual letter of engagement' upon the commencement of her employment which clearly stated under the clause 'Nature of Engagement' that she would be offered work on an ad-hoc basis as and when there was work available. This clause specifically stated that the complainant was free to accept or decline such offers of work and that work would be offered on either an hourly or seasonal basis. The respondent submitted that at the time of the complainant's engagement it offered 'corporate breakfasts' to corporate clients on the sixth floor of the hotel. The complainant's initial role was as a waitress on this shift which commenced at 6:30 am and finished in or around 12 noon. The respondent submitted that the aforementioned service to corporate clients was seasonal, operating from June to November each year, and when this service terminated at the end of October, 2009, the complainant and the other Food and Beverage Assistants were offered work in the restaurant of the hotel.
4.2 The respondent accepts that the complainant informed it of her pregnancy on 12 October, 2009, however, it denies that she was subsequently removed from the work roster or that her hours of work were reduced on the basis of her pregnancy. The respondent submitted that at the end of the corporate season the demand for the corporate work located on the sixth floor had diminished and a decision was taken in or around November, 2009 that the hotel would cease to have a corporate suite situated on the sixth floor unless the business increased. As a result the complainant was offered alternate work in the main area of the hotel restaurant as a Food and Beverage Assistant. The respondent submitted that the winter period was a quite time for the hotel and also following the closure of the corporate suite there was a general reduction in the volume of work available to casual Food and Beverage Assistants (such as the complainant). The respondent accepts that the complainant's hours were reduced after she transferred to the restaurant in November, 2009; however, it claims that this was directly attributable to the diminished workload at that juncture and that all of the other casual Food and Beverage Assistants were also forced to take a reduction in their hours at that time.
4.3 The respondent submitted that the type of role which the complainant was required to carry out in the main restaurant was very busy compared to the corporate food and beverage role which she had previously performed. The respondent submitted that it took the view that as the complainant was pregnant it was important to carry out a risk assessment and it confirmed that all of its pregnant employees are required to participate in a risk assessment after announcing their pregnancies. The respondent submitted that the complainant was requested on several occasions to attend a meeting with its HR Department to carry out a risk assessment but she failed to comply with these requests. The respondent submitted that due to the duty of care owed to the complainant on the grounds of her pregnancy she could not be offered as many hours as it would have liked until the risk assessment had been carried out. The respondent submitted that there was an increased workload in the main restaurant and given the fact that the complainant had been absent on sick leave for pregnancy related reasons it was felt that until the risk assessment was carried out that it was under an obligation to monitor her workload and the type of work that she carried out.
4.4 The respondent accepted that the risk assessment could have been carried out without the co-operation of the complainant but felt that as she had been off sick previously with pregnancy related problems and had requested to go home early when the workload was quiet, that the assessment should be carried out in conjunction with her especially given the change and rise in the workload generally. The respondent submitted that it was decided that if the complainant failed to comply with the request in March, 2010 to participate in the risk assessment that consideration would have to be given towards placing her on emergency leave on the grounds of health and safety until she had availed of the risk assessment. The respondent submitted that the complainant eventually agreed to participate in the risk assessment on 12 March, 2010 where the minor reduction in her hours that had already been carried out was approved and it was agreed that any changes required by the complainant from that point onwards would be reported to her supervisor. The respondent submitted that the complainant continued to be offered work when available up until the date she went on maternity leave.
5. Conclusions of the Equality Officer
5.1 Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination in relation to her. If she succeeds in doing so, then, and only then, is it for the respondent to prove the contrary. 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. In deciding on this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the complainant. It is only where such a prima facie case has been established that the burden of proving there was no infringement of the principle of equal treatment passes to the respondent.
5.2 Section 6(1) of the Employment Equality Acts, 1998 to 2008 provides that discrimination shall be taken to occur where "a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2).....". Section 6(2)(a) of the Acts defines the discriminatory ground of gender as follows - "as between any 2 persons, ... that one is a woman and the other is a man". Section 6(2)(b) of the Acts defines the discriminatory ground of marital status as follows - "as between any two persons ... that they are of different marital status" and section 6(2)(h) of the Acts defines the discriminatory ground of race as follows - "as between any 2 persons, ... that they are of different race, colour, nationality or national origins".
5.3 At the outset of the hearing of the complaint, the complainant's representative withdrew the complaints in relation to discriminatory dismissal and harassment. Accordingly, the only issues for decision in this case is whether or not the respondent subjected the complainant to discrimination on the grounds of her gender, marital status and race in terms of access to employment and conditions of employment contrary to the Employment Equality Acts. In reaching my decision, I have taken into account all of the submissions, written and oral, made by the parties.
Access to Employment
5.4 It should be noted that claims concerning access to employment relate to cases of recruitment or entry to employment. In the present claim the complainant was already working for the respondent and accordingly, her claims in relation to the allocation of hours and removal from the work roster will be considered in the context of conditions of employment. In that context, the complainant has failed to establish a prima facie case of discrimination with respect to access to employment.
Conditions of Employment - Gender Ground
5.5 The complaint under the gender ground in the present case arises as the complainant was pregnant during the period of time when the discriminatory treatment is alleged to have occurred. The European Court of Justice stated in Dekker -v- Stichting Vormingscrentrum voor Jong Volwassen that unfavourable treatment as a result of or connected to pregnancy is direct discrimination on the grounds of gender. It later held in Brown v Rentokil that the entire period of pregnancy and maternity leave is a protected period during which both the EU Equal Treatment Directive and EU Pregnancy Directive prohibit dismissal on grounds of pregnancy and dismissal of a pregnant employee during that period can only occur in exceptional circumstances unrelated to pregnancy or maternity. Whilst these cases related to appointments and dismissals, the approach adopted in these cases has also been recognized as extending to the terms and conditions of employment by the European Court of Justice in the case of CNATVS -v- Evelyne Thibault where it was held:
"It must therefore be held that a woman who is accorded unfavourable treatment regarding her working conditions, in that she is deprived of the right to an annual assessment of her performance, and therefore, of the opportunity of qualifying for promotion as a result of absence on account of maternity leave, is discriminated against on the grounds of her pregnancy and her maternity leave. Such conduct constitutes discrimination based directly on grounds of sex within the meaning of the Directives."
5.6 In the present case, the complainant claims that she was removed from the work roster for a week and that her hours of work were subsequently reduced after she had informed the respondent that she was pregnant on 12 October, 2009. She claims that this treatment amounts to discrimination on the grounds of her gender contrary to the Acts. The respondent denies that the complainant was subjected to discrimination on the grounds of her gender and it denies that she was removed from the work roster following the announcement of her pregnancy. The respondent accepts that the complainant's hours were reduced in or around the period of time that she announced her pregnancy; however, it claims that the reduction in her hours of work was directly attributable to the fact that there was a general reduction in the hotel's workload at that particular juncture and due to the fact that she failed to comply with its requests to participate in a risk assessment which all of its pregnant employees are required to attend. Therefore, the question I must address is whether, on the balance of probabilities, the complainant was subjected to less favourable treatment in terms of the hours of work which she was offered during the period after she had informed the respondent of her pregnancy.
5.7 In considering the issue regarding the complainant's claim that she was removed from the work roster after she had announced her pregnancy, I note that it was not in dispute that the complainant informed the respondent that she was pregnant on 12 October, 2009. The complainant has claimed that she was subsequently removed from the work roster for one week (i.e. the week commencing 19 October, 2009). The respondent disputed the complainant's claim that she was removed from the work roster for this week and it adduced documentary evidence that she worked a total of 32 hours during this week. I have found the complainant's evidence in relation to this issue to be totally unconvincing and I note that in her evidence to the Tribunal she was very unclear regarding the dates of the actual week which she claims that she had been removed from the roster. On balance, I have found the respondent's evidence in relation to this issue to be more credible and I do not accept the complainant's claim that she was removed from the work roster following the announcement of her pregnancy.
5.8 In considering the complainant's claim that her hours of work were reduced following the announcement of her pregnancy, I note that it was not disputed by the respondent that her hours of work were in fact reduced in or around November, 2009. The respondent has stated that the reasons for the reduction in her hours at that juncture were twofold; firstly, that the complainant failed to comply with its requests to carry out a risk assessment after she had announced her pregnancy and secondly, that there was a general reduction in the hours available to all Food and Beverage Assistants (such as the complainant) at that particular time of year which had been exacerbated as a result of the closure of the corporate clients section. In considering the issue surrounding the completion of a risk assessment, the respondent claimed that the complainant had been absent on pregnancy related sick leave from 9 to 22 November, 2009, and allied to the fact that her new role in the restaurant was more physically demanding than her previous role in the corporate clients section, it could not offer her as many hours as it would have liked until the risk assessment had been carried out.
5.9 In considering this issue, I note that Article 5 of the EU Pregnancy Directive has been transposed in Irish law by the Safety, Health and Welfare at Work (General Application) Regulations, 2007 . Regulation 151 states, inter alia, that employer's should:
"Assess any risk to the safety or health of employees and any possible effect on the pregnancy of, or breastfeeding by, employees, resulting from any activity at that employer's place of work likely to involve a risk of exposure to any agent, process or working condition ... "
The Tribunal does not have jurisdiction for the enforcement of either the Regulations or the Pregnancy Directive. Nonetheless, in deciding whether the complainant was subjected to less favourable treatment on the grounds of her pregnancy, the rights of the complainant and the duty of the respondent under Community law must be taken into consideration. The respondent submitted that it made several attempts to carry out a risk assessment after it became aware of the complainant's pregnancy and it claims that she failed to comply with these requests (although the complainant disputes this evidence). I note that the respondent submitted documentary evidence which supports its contention that the HR Department made several attempts to try and arrange the risk assessment with the complainant. On balance, I have found the respondent's evidence in relation to this issue to be more compelling and I accept its evidence that the complainant failed to comply with its attempts to have the risk assessment carried out during the period after she announced her pregnancy until she ultimately participated in the risk assessment on 12 March, 2010. I also accept the respondent's evidence that it could not offer the complainant as many hours as it would have wished until she agreed to participate in the risk assessment.
5.10 The respondent has also argued that the hours of work that were allocated to all of the Food and Beverage Assistants (and not just the complainant) were reduced in or around November, 2009 as a result of the seasonal decline in its business during the winter period and the closure of the corporate clients section where the complainant had previously worked. I have taken into consideration that the complainant was employed on a casual basis and that it was stated in her contract of employment that she would only be offered work on an ad-hoc basis as and when work was available. Having regard to the evidence adduced, I am satisfied that there was also a general reduction in the hours of work that were allocated to the other Food and Beverage Assistants (including the complainant), who were employed on a casual basis, in or around the period of time that she had announced her pregnancy. In this regard, I note that the respondent has adduced evidence in relation to a number of other male Food and Beverage Assistants who also had their hours of work reduced at that juncture. I therefore find that the reason why the complainant's hours were reduced in or around November, 2009 was directly attributable to a decline in the respondent's workload at that juncture rather than the fact of her pregnancy. Having regard to the foregoing, I find that the complainant has failed to establish a prima facie case of discrimination on the grounds of her gender in terms of the hours of work which she was allocated following the announcement of her pregnancy.
Conditions of Employment - Race and Marital Status Grounds
5.11 I am satisfied that the complainant has not adduced any evidence from which I could reasonably conclude that the reduction in her hours was in any way attributable to either her race or her marital status. I accept the respondent's evidence that the hours available to all Food and Beverage Assistants, regardless of the nationality and/or marital status were reduced in or around November, 2009 as a result of the closure of the corporate clients section and due to a general decrease in business at that particular time of year. Accordingly, I find that the complainant has failed to establish a prima facie case of discrimination on the marital status and race grounds in terms of the hours of work which she was allocated.
6. Decision
6.1 Having investigated the above complaint, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts, 1998 to 2008. I find that:
(i) the respondent did not discriminate against the complainant on the gender, marital status or race grounds pursuant to sections 6(2)(a), 6(2)(b) and 6(2)(h) of the Acts, in respect of access to employment contrary to section 8(5) of the Acts.
(i) the respondent did not discriminate against the complainant on the gender, marital status or race grounds pursuant to sections 6(2)(a), 6(2)(b) and 6(2)(h) of the Acts, in respect of her conditions of employment contrary to section 8(6) of the Acts.
Accordingly, I find in favour of the respondent in this case.
______________
Enda Murphy
Equality Officer
21 December, 2011