THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision DEC - E2011-093
PARTIES
A Receptionist
(Represented by Richard Grogan & Associates, Solicitors)
-V-
A Medical Consultant
File Reference: EE/2008/625
Date of Issue: 13/05/2011
Decision DEC - E2011-093
A Receptionist
(Represented by Richard Grogan & Associates, Solicitors)
-V-
A Medical Consultant
Keywords
Employment Equality Acts 1998-2008, Dismissal - Section 2(1), Section 6(1) - less favourable treatment, Section 6(2)(b)(c) & (h)- gender, family status and race, Section 8(6)(c) - discriminatory dismissal, prima facie case.
1. Dispute
1.1 This dispute concerns a claim by a complainant that she was discriminated against by the above named respondent on the gender, family status and race grounds, in terms of Sections 6(1), 6(2) (b), (c) and (h) of the Employment Equality Acts 1998-2008 and contrary to section 8 in relation to her conditions of employment and dismissal. At the start of the hearing the complainant's solicitor withdrew the complaint on the race ground and also withdrew complaints in relation to the complainant's conditions of employment.
2. Background
2.1 The complainant referred a complaint under the Employment Equality Acts to the Equality Tribunal on the 26th of September 2008 alleging that the respondent discriminated against her contrary to the Acts. In accordance with his powers under section 75 of the Employment Equality Acts, 1998-2008 the Director delegated the case on 2nd February, 2011 to me, Marian Duffy, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of those Acts. This is the date I commenced my investigation. Written submissions were received from the complainant on the 23rd January 2009 and from the respondent on the 21st December 2010. As required by section 79(1) of the Acts and as part of my investigation, I proceeded to hearing on the 16th of February, 2011.
3. Summary of the Complainant's Case
3.1 The complainant was employed by the respondent as a receptionist/secretary in her medical consultancy on the 14th of May 2007 until her dismissal on the 1st April 2008. The complainant said that she is a separated mother of 2 and was in another relationship. She ordered a book on-line called "swinging" and had it address to herself at the respondent's address because she was not at home to take in the post. She said that her new partner had raised the question of "swinging" and she wanted to find out about the subject and this was the reason she ordered the book. It appears that the package was opened by the respondent in her absence. The package arrived on a Friday when the complainant was on a day's leave. She was called to a meeting by the respondent the following Tuesday. She said that the respondent handed her the book. The complainant said that there was no discussion with the respondent. She asked her to leave the employment immediately and to leave the keys on the desk on the way out. She was given a months pay in lieu of notice, which had already been prepared and it was in the envelope with the book. The complainant said that she was dismissed without proper procedure and she was given no opportunity to defend herself and she was not advised of any right to appeal.
3.2 The complainant said that she was never informed by the respondent that she could not take delivery of personal post to the office. In the past she ordered a dictionary on-line and had it delivered to the office. The complainant submits that she believes the respondent jumped to conclusions about her private life when she discovered the book and judged her in light of the contents and dismissed her for matters connected with it.
4. Summary of the Respondent's case
4.1 The respondent denies that the complainant was discriminated against in relation to the dismissal. The respondent stated that she has a medical consultancy in dermatology and venereology. She said that she picked up a package in the mail box of her medical practice addressed to the complainant c/o of her name (the respondent's) and address. She said that the complainant was on a day's leave and she assumed the package contained pathology slides she was expecting from a London hospital. She opened the envelope because these slides are usually sent in a similar type of jiffy envelope. She said that the post is normally lying in the reception area of the surgery and is freely visible and accessible to all the patients. The senders address was clearly visible and identifiable on this particular package. The respondent said that when she opened the package she was horrified to discover that it was a book about the topic of "swinging". She said that she was familiar with the topic of "swinging" from her medical practice and she has great concern about its impact on sexually transmitted diseases. The respondent stated that she was shocked at the nature of this material, the fact that it was in a public area of the office and the fact that her professional name and medical address was associated with it. She was also concerned that the complainant might have discussed the matter with any of her patients or attempted to recruit any of them to a swinging club.
4.2 Following an investigation of the matter with the complainant, the respondent said that she decided to dismiss her. She said that the complainant could not give her an assurance that her professional name and address was removed from the mailing list of the company which supplied the book and that she had not discussed "swinging " with any of her patients. She said that associating her with this inappropriate material which had her name and address on the envelope and also the name of the supplier could have exposed her professional practice to disrepute, potential legal action and censure from her professional medical body.
5. Conclusions of the Equality Officer
5.1 The issues for decision in this case is whether or not the respondent discriminated against the complainant on the grounds of family status and marital status in terms of section 6(1) and 6(2)(b) and (c) of the Employment Equality Acts, 1998 to 2008 and contrary to section 8 of those Acts as regards her dismissal. Section 6 of the Acts inter alia provides:
6. -- (1) "For the purposes of this Act and without prejudice to its
provisions relating to discrimination occurring in particular circumstances,
discrimination shall be taken to occur where --
(a) 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) (in this
Act referred to as the ''discriminatory grounds'') which --
(2) As between any 2 persons, the discriminatory grounds (and
the descriptions of those grounds for the purposes of this Act) are --
......
(b) that they are of different marital status (in this Act referred
to as ''the marital status ground''),
(c) that one has family status and the other does not (in this
Act referred to as ''the family status ground''),
and Section 85A of the Acts provides:
"(1) Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary".
5.2 This requires the Complainants to prove the primary facts upon which she relies in seeking to raise an inference of discrimination. It is only when they have discharged this burden to the satisfaction of an Equality Officer that the burden shifts to the respondent to rebut the inference of discrimination raised. If the complainant does not discharge the initial probative burden required of him his case cannot succeed. In reaching my decision, I have taken into account all of the submissions, written and oral, made by the parties.
5.3 The matter I have to consider is whether the termination of the complainant's employment was motivated by discriminatory factors relating to her marital status and family status. The complainant submitted that she was a separated mother of 2 children and had established a new relationship. She further submitted that she was dismissed without any proper procedures or being given an opportunity to defend herself and that the respondent jumped to conclusions about her private life and judged in the light of the contents of the book and this was the reason for her dismissal. The respondent stated that she dismissed the complainant for using her professional name and address for the delivery of a book which concerned the topic of "swinging". She was concerned that her professional practice and name could be brought into disrepute for having her name associated with such websites or suppliers of such material if it became known that she tolerated the receipt of such books or material in her office.
5.4 Having considered the evidence I am satisfied that the complainant has not raised any inference of discriminatory treatment on the family status and marital status grounds. The complainant has not established any connection whatsoever between the above mentioned grounds and her dismissal. The mere fact that the complainant is covered by a ground is insufficient without some other evidence to raise a prima facie case. I am satisfied that the complainant was dismissed because of the respondent's concerns about the reputation of her professional practice and name: if it became known that she was associated with or tolerated the receipt of material on the topic of "swinging into her professional practice. Therefore I find that no evidence has been presented to substantiate the complaint of discriminatory dismissal. I find that the complainant has not established that she was treated less favourably than another person of a different marital status or different family status or different sexual orientation was treated or would have been treated in similar circumstances. Therefore I find that the complainant has failed to establish a prima facie case.
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 marital status, family status and sexual orientation grounds pursuant to sections 6(1)and 6(2)(b) and (c) of the Acts and contrary to section 8(6) of the Acts in respect of her dismissal.
_______________________
Marian Duffy
Equality Officer
13th May 2011