THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision DEC - E2011 - 208
PARTIES
Ms Marion Kennedy
(represented by James Egan, B.L.,
instructed by Augustus Cullen Law, solicitors)
and
Packaging Components Ltd.
File Reference: EE/2008/497
Date of Issue: 8th November, 2011
Headnotes: Employment Equality Acts, 1998 & 2004, section 6, 8, 14 and 77 - Section 6(2)(a), Gender ground - Section 6(2)(c), Family Status Ground - Section 8(i)(a), access to employment - Section 8(i)(b), conditions of employment -Section 14A, harassment - Remarks made - working hours
1. Dispute
1.1. This case concerns a complaint by Ms Marion Kennedy (hereinafter referred to as "the complainant") that she was harassed by Packaging Components Ltd, (hereinafter referred to as "the respondent") on the ground of gender contrary to section 14A of the Employment Equality Acts, 1998 to 2008 ("the Acts") and was discriminated by the respondent on the family status ground in relation to (i) access to employment and (ii) conditions of employment, contrary to Section 8(1) of the Acts, and that she was constructively dismissed by the respondent contrary to Section 8(6)(c) and in terms of Section 2(1) of the Acts.
2. Background
2.1. The complainant referred a complaint under the Acts to the Director of the Equality Tribunal on 23rd July, 2008, alleging that the respondent had discriminated against her and harassed her on the grounds of gender and family status.
2.2. On the 8th February, 2011, in accordance with his powers under section 75 of the Acts, the Director delegated the case to me, Gary O'Doherty, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions under Part VII of the Acts, on which date my investigation commenced. Written submissions were received from both parties. A hearing of the complaint was held on 2nd June, 2011. Further documentation was requested from the parties and final correspondence in this respect was received on 18th August, 2011.
3. Summary of the Complainant's case
3.1. The complainant submitted that she started employment with the respondent in 2005 and gave an account of the work she did for it. At the hearing, she gave a detailed account of a number of statements which she alleged that Ms A, her supervisor, made to her and which she submitted constituted harassment on the gender ground. In that context, she stated, inter alia, that Ms A told her that people hired by the respondent would normally be "fat and ugly" and that the complainant dressed too glamorously.
3.2. The complainant stated that she reported the matter to Mr B, the Managing Director of the respondent, on numerous occasions. In that regard, she stated that she 'might say something to him like "am I doing something wrong?"'. She said that he might say "she never said anything to me". She stated that when she spoke to Mr B about the issues with respect to the changing of her hours (see following paragraph), she also told him that she felt that she was being bullied and he replied that he was not bullying her. She said that he did not really say anything else. The complainant said she never saw an anti-bullying policy.
3.3. The complainant stated that, on 22nd January, 2008, Mr B told her that her hours were changing. She said that he told her that whoever they hired to replace her co-worker, Ms C, who was going on maternity leave, would have the choice of hours as they would probably be a working mother and might have children or family commitments. She said that she replied that she has family commitments too and referred to her commitments to her mother in that context. She said that she was quite shocked. She denied she was offered the choice of mornings or afternoons and reiterated that she was told she had to work afternoons. She said that she would have worked mornings if she was given the choice as mornings would have suited her because of her commitment to her mother.
3.4. The complainant outlined correspondence which followed this meeting and gave an account of further meetings which she had with Mr B about the matter. At one of these meetings, she said that she told Mr B that she felt she'd have to resign. She said that his response was that he would speak to her about it the following Monday but she didn't speak to him thereafter and he never spoke to her. She said that her conditions of employment were changed unilaterally and her resignation was accepted by Mr B and that this constituted constructive dismissal within the meaning of the Acts. The complainant said that she was never told the changes of hours were going to be temporary. She said she felt strongly that she had been flexible and if she thought it was temporary then maybe they could have worked things out.
3.5. The complainant submitted that she was forced to leave the company with much despair. She submitted that she also felt that even had she been able to change her hours of work, the bullying and intimidation would have continued. She submitted that she felt strongly that Ms A bullied her out of the company and though she tried to go down the right channels with Mr B, he failed to respond professionally. She also submitted that, having effectively altered the conditions of her employment to such an extent, the respondent effectively denied the complainant access to employment.
4. Summary of the Respondent's case
4.1. Ms A, who was present at the hearing, responded to the complainant's allegation with respect to her claim of harassment. She either could not recall or denied that the statements in question were made. Mr B, who was also present at the hearing, outlined what he considered to be a good working relationship between Ms A and the complainant. He said that there was one occasion when the complainant asked to speak to him but that was with respect to an issue that had arisen in relation to smoking in front of the office and did not relate to any of the matters raised with respect to the claim of harassment. He said that they had an anti-harassment policy which was part of their safety statement and outlined how this had been notified to staff.
4.2. Mr B said that the complainant had no formal contract of employment. He said that her hours were worked out between herself, Ms A and Ms C and that there was lots of flexibility between them as long as there were two people available to answer phones at all times. He said he was informed by Ms C that she was having another baby in September/October 2007 and he immediately started to recruit a temporary replacement. He described the difficulties they had with respect to that recruitment process and that it was suggested by him that they put the complainant on mornings or afternoons.
4.3. Mr B said that a document he provided to the complainant in that respect was a discussion document. He said there was no suggestion that this was permanent, that nothing was set in stone and they were working towards resolving the issue. He said he needed the complainant to choose mornings or afternoons so he could then offer the opposite hours to the person recruited and also told her that the most likely candidate would be a working mother and, in that context, the recruitment process would be more likely to succeed if the complainant took the afternoon.
4.4. With respect to the question of dismissal, Mr B said that he had a policy that he accepted a resignation if it was offered. He said that no person was being offered her hours and they were still trying to work out some flexibility.
5. Conclusions of the Equality Officer
5.1. Section 85A of the 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 him/her. If he/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. Therefore, in deciding on this complaint, I must first consider whether the complainant has established the existence of a prima facie case. 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 Acts 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..." Section 14A of the Acts defines harassment as being "any form of unwanted conduct on any of the..grounds...which has the effect of violating a person's dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person". Section 6(2)(a) of the Acts defines the discriminatory ground of gender as follows - "as between any two persons ..... that one is a woman and the other is a man" ". Section 6(2)(c) of the Acts defines the discriminatory ground of family status as follows - "that one has family status and the other does not".
5.3. The issues for me to decide in this case, then, are as follows: Firstly, whether the complainant was harassed by the respondent as defined by Section 14A; Secondly, whether the complainant was subjected to less favourable treatment in comparison to another person on grounds of family status (i.e. because she does not have children) with respect to her conditions of employment and/or access to employment; thirdly, whether the complainant was constructively dismissed on the basis of her family status. In reaching my decision in this case, I have taken into account all of the submissions, both oral and written, made to the Tribunal in the course of its investigation.
Claim of Harassment
5.4. The complainant listed a number of remarks that she alleged were made to her by Ms A and which she submitted constituted harassment on the gender ground. However, all but two of the remarks in question cannot be considered to relate to the complainant's gender. The two remarks that the complainant alleged Ms A made which might possibly constitute harassment in that context are: an alleged remark that people hired by the respondent would normally be "fat and ugly"; an alleged remark that the complainant dressed too glamorously. Ms A could not recall making the former statement, and denied making the latter statement. These are the only comments it is appropriate for me to consider in that context (and, consequently, are the only remarks I have explicitly described in paragraph 3.1 above).
5.5. I am satisfied that the remarks in question were made and it is clear that the complainant took at least a mental note of them. However, on balance, I am not satisfied that she reported them or that she ever raised an issue with anyone with respect to them. In that context, and in any event, I am not satisfied that, at the time the remarks in question were made, the complainant considered them to have violated her dignity or to have created a hostile, degrading, humiliating or offensive environment for her.
5.6. It is clear that the upset and hurt with respect to these remarks that the complainant displayed at the hearing was genuine. However, given that I am satisfied that she did not consider these remarks to be harassment at the time they were made, I can only conclude that her subsequent upset about the remarks stems from retrospective reflection upon the incidents in question in light of the circumstances surrounding her departure from the respondent company. In that context, I do not consider that the remarks in question can be considered to be harassment under the Acts.
Claim in relation to discrimination on the Family Status ground
Conditions of Employment
5.7. The complainant's submission with respect to conditions of employment is that the respondent failed or refused to allow the complainant a choice in respect of working mornings because of her family status (with respect to the recruitment of a temporary replacement for Ms C, who was going on maternity leave). In that respect, she submitted that she was told by the respondent that she would not be given the choice of hours as "someone else may have a family or children". The respondent contested this submission, at least in so far as it denied that it told her that the choice of hours would be given to the person being recruited. Furthermore, it submitted that the matter had not been settled prior to the complainant's departure.
5.8. On balance, I prefer the evidence of the respondent in that respect. In that context, the complainant has failed to establish a prima facie case of discrimination with respect to conditions of employment on the family status ground.
Access to Employment
5.9. Access to employment claims relate to cases of recruitment or entry to employment. In this claim the complainant was already working for the respondent and her claims in relation to the time she was working for the respondent have already been considered in the context of conditions of employment. Therefore, I find that the complainant has failed to establish a prima facie case in relation to access to employment.
Constructive dismissal
5.10. Section 2(1) of the Acts defines dismissal as including "the termination of a contract of employment by an employee (whether prior notice of termination was or was not given to the employer) in circumstances 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 ...."
5.11. In An Employer v A Worker (Mr. O No.2) the Labour Court comprehensively addressed the issue of constructive dismissal under employment equality legislation. It noted that the above definition was practically the same as the definition of "dismissal" contained in the unfair dismissals legislation and held that the tests for constructive dismissal developed under that legislation - the "contract" test and the "reasonableness" test - were applicable tests under the Employment Equality Acts. In addition, the Court held "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".
5.12. In the instant case I am satisfied that the "reasonableness" test is the more appropriate. It requires the complainant to satisfy the Tribunal that the behaviour of the respondent was so unreasonable that she could not fairly be expected to put up with it any longer and she was therefore entitled to resign from its employment.
5.13. The corpus of caselaw developed on this point requires the complainant, before taking the unilateral step of terminating her employment, to give the respondent the opportunity to address her grievance or complaint. While the complainant clearly reported the matter to Mr B, and there were discussions around it, I am not satisfied that the complainant provided the respondent with sufficient opportunity to address the grievance. In any event, I am not satisfied that the behaviour of the respondent could be considered to be so unreasonable that she could not fairly be expected to put up with it any longer. Her complainant in this respect, therefore, fails.
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:
6.2. I find that the complainant has failed to establish a prima facie case that the respondent harassed her on the gender ground pursuant to section 6(2)(a) of the Acts, and contrary to s.14A of the Acts.
6.3. I find that the complainant has failed to establish a prima facie case that the respondent discriminated against her on the family status ground pursuant to section 6(2)(c) of the Acts in terms of access to employment contrary to s.8(1)(a) of the Acts
6.4. I find that the complainant has failed to establish a prima facie case that the respondent discriminated against her on the family status ground pursuant to section 6(2)(c) of the Acts in terms of conditions of employment contrary to s.8(1)(b) of the Acts
6.5. I find that the complainant has failed to establish a prima facie case that the respondent dismissed her on the family status ground pursuant to section 6(2)(c) of the Acts, in terms of Section 2(1) of the Acts, and contrary to s.8(6)(c) of the Acts
_____________
Gary O'Doherty
Equality Officer
8th November, 2011