The Equality Tribunal
3 Clonmel Street
Dublin 2.
Phone: 353 -1- 4774100
Fax: 353-1- 4774141
E-mail: info@equalitytribunal.ie
Website: www.equalitytribunal.ie
Employment Equality Acts 2000 to 2008
EQUALITY OFFICER'S DECISION
NO: DEC-E2011-180
Andrea Koclova
(Represented by SIPTU)
V
Hanley Clothing (Waterford) Limited t/a Tommy Hilfiger
(Represented by Purdy Fitzgerald Solicitors)
File No. EE/2009/188
Date of Issue: 30 September 2011
File reference: EE/2009/188 - DEC-E2011-180
Keywords:
Employment Equality Acts -Discriminatory dismissal - Gender - Race
- Prima Facie Case - Victimisation
Dispute
1.1 This dispute concerns a claim by Ms Andrea Koclova that Hanley Clothing Waterford Limited t/a Tommy Hilfiger discriminated against her on the grounds of gender, marital status, family status and race in terms of Section 6 of the Employment Equality Acts 1998 to 2008 and contrary to Section 8 of those Acts in terms of conditions of work, access to promotion and discriminatory dismissal and contrary to Section 74(2) of the Acts when she was victimised and when it terminated her employment in February 2009.
1.2 The complainant referred a complaint under the Employment Equality Acts to the Equality Tribunal on 19 March 2009. In accordance with his powers under the Acts the Director delegated the complaint to the undersigned - Fiona Lafferty, 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 12 September 2011 the date the complaint was delegated to me. Submissions were received on behalf of both parties. As required by section 79(1) of the Acts and as part of my investigation, I proceeded to hearing on 13 September 2011.
2. Case for the Complainant
2.1 The complainant, who is a Slovakian national, states that she was employed by the respondent from June 2008 until February 2009 as a full time sales assistant in the female section of the Waterford Tommy Hilfiger Store. She submits that when she advised the respondent that she was pregnant on 22 October 2008 her hours of work were reduced in favour of a male employee who commenced employment after the complaint and also in favour of a female Irish colleague who commenced employment at the same time as the complainant. She contends that the respondent failed to engage with her in any meaningful way or provide any written procedures when she requested to be allowed wear her own clothing in the workplace contrary to company policy where all employees were required to wear Tommy Hilfiger branded clothing. She submits that she was not made aware of a promotional position which was afforded to a male colleague who obtained the promotional position. She further contends that she was dismissed because she was pregnant. She contends that this constitutes unlawful discrimination on the grounds of gender, race, family status and marital status contrary to the Acts.
2.2 The complainant submits that the period of pregnancy is a completely protected period and that dismissing an individual who is pregnant is discriminatory in itself on the gender ground. In addition, as she is a non Irish national she contends that she was in a particularly vulnerable position. She submits that she was victimised after raising issues with the respondent and left without payment for holidays, she further submits that she was dismissed while pregnant and was two stamps short of qualifying for maternity benefit and that this amounts to victimisation within the meaning of the Acts.
2.3 The complainant referred to a number of cases in support of her case, including Webb v EMO Air Cargo (UK) Ltd, Brown v Rentokil, Dekker v Stichting Vormingscentrum, Campbell Catering v Rasaq, Finanzamat Koeln-Alstadt v Roland Schumaler, Dunnes v O'Byrne, and Intrium Justitia v McGarvey.
3. Case for the Respondent
3.1 The respondent denies discriminating against the complainant as alleged or at all. The respondent operates a retail clothing store and it has been in business since 2007. The respondent stated that it employed 13 members of staff in February 2009, of which 4 were part time, which included workers from the USA and Ireland. It now employs 6 full time staff and 2 part time staff. The respondent stated that the complainant was employed as a general sales assistant on a full time basis in the ladies wear department of the store from June 2008 until March 2009. It confirmed that she was a good worker and there had never been any disciplinary or performance related issues with her during the course of her employment.
3.2 The respondent submitted that on 21 October 2008 management had a meeting with staff to inform them that due to a reduction in business turnover it would be necessary to reduce employee's hours of work, particularly in the ladies wear section of the store as there was a lesser staffing requirement in that department. The respondent submitted that the store's business was divided into two main sections, menswear and ladies wear and that sales staff who were specifically trained in mens wear or womens wear brand items were not interchangeable. It stated that the turnover was down about 30% in the ladies wear section in October 2008 and that management met with both sections separately to inform them of the position. It also stated that it alerted staff that there would be a further review of the position in February 2009 following the 2009 January sales. It submitted that when it informed staff in the ladies wear section of the downturn in business and the reduction in working hours on 21 October 2008 it was not aware of the complainant's pregnancy. The respondent submitted that another full time female staff member and two part time staff all working in the womens wear department had a similar reduction in working hours to a three day week in November 2008 . It also submitted that both the complainant and the other full time employee who had suffered a reduction in working hours to a three day week were offered work at evenings and weekends in order to make up the full time core hours of work, but that the complainant was not flexible and did not make herself available to work for the hours offered, in particular Thursday evenings and Sundays as it claims she wanted to spend time with her boyfriend. This was unlike her colleague who made herself available for work as required.
3.3 The respondent submits that the complainant informed management on 23 October 2008 that she was pregnant and it claims that she was reassured at that juncture that she would be facilitated in any way possible during the course of her pregnancy.
3.4 The respondent maintains that no complaint was made at local level to the General Manager by the complainant in relation to her conditions of employment and the difficulty that the complainant was having regarding the company policy to wear Tommy Hilfiger branded clothing in the workplace. The respondent claims that the first knowledge that it had of a difficulty in this area was when the complainant's representative wrote to the respondent on a number of issues and the respondent clarified the position in writing in January 2009 by stating that the respondent "was more than willing to accommodate [the complainant] ... with any maternity wear of any brand or description she desires". It also provided the complainant with written terms and conditions of employment when requested and confirmed that no employee had received a written contract of employment from the respondent and denies any allegation of discrimination in this regard.
3.5 The respondent denies that it discriminated against the complainant in relation to access to a post of Assistant Manager which arose in the menswear department. It claims that there was no external or internal advertisement or interview procedure for this job and that the person who was promoted to the post of Assistant Manager in the menswear department of the store was the only suitable candidate internally as he had seven years knowledge and experience of working with the Tommy Hilfiger brand in another mens wear store.
3.6 With regard to the complainant's redundancy and dismissal the respondent denies that it discriminated against the complainant and submits that the complainant's pregnancy or nationality had no bearing on her selection for redundancy. It submitted that the selection for redundancy was fair and transparent and was necessitated by managerial and business considerations, i.e. the necessity to reduce staff in the ladies wear department of the store because of the significant downturn in business turnover in that department. It submitted that another female full time employee, an Irish national also working in the ladies wear department, was also made redundant at the same time as the complainant on the basis of Last In First Out selection criteria in the ladies wear department. In support of this contention the respondent provided the Tribunal with documentation demonstrating that there was a significant downturn in the ladies wear department of the store and the general financial position of the company and this was the selection criteria that was used for selection for redundancy.
3.7 The respondent submitted that it did not victimise the complainant after she raised issues with management through her union representative. The adverse treatment claimed is that she was not paid for holiday leave. It submitted that the complainant had used up all of her holiday entitlements under the Organisation of Working Time Act 1997 in that she had already received two weeks annual leave just one month after commencing employment. It was submitted that the complainant had been made fully aware when she took another two week's leave in January 2009 that this would be unpaid leave and it claims it was acknowledged by the complainant that this leave would be unpaid as she had no further entitlements under the 1997 Act.
4. Conclusions of the Equality Officer
4.1 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 it is for the respondent to prove the contrary. The Labour Court has consistently held 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 when such a prima facie case has been established that the burden of proving that no infringement of the principle of equal treatment passes to the respondent.
4.2 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 man" 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".
4.3 There was no evidence proffered to substantiate the complaints on marital status and family status. Accordingly, the issue for decision in this case is whether or not the respondent discriminated against the complaint on the grounds of her gender and race contrary to the Employment Equality Acts in terms of conditions of employment, access to promotion, and whether the complainant was discriminatorily dismissed, and whether the complainant was victimised within the meaning of the Acts. In reaching my decision, I have taken into account all of the submissions, written and oral, made by the parties.
4.4 Conditions of employment
4.4.1 Variation in hours of work
Generally I found the evidence of the witness for the respondent more compelling than the complainant in relation to this aspect of the complainant's claim. The General Manager in oral evidence stated that the menswear section and ladies wear section of the business were operated separately. He held meetings with both areas on a separate basis and turnover and management accounts were prepared and recorded internally for both sections. He stated in oral evidence that he gave the complainant every opportunity to make up her core full time hours of work when the business situation in the ladies wear department necessitated a reduction to a three day week. He stated that she refused to work late nights as needed, i.e. from 6 to 9 pm on either Thursdays or Fridays and submits that the complainant had indicated to him that it wasn't worth her while working on Friday nights as she didn't have her own transport and it wasn't worthwhile working after paying for transport. After November 3 2008 it was submitted that she also indicated that she was unable to work on Sundays as she wanted to spend time with her boyfriend. The respondent presented documentary evidence showing the hours of work by the complainant and the other female colleague who had reduced working hours. From an analysis of this documentation I am satisfied that the ladies wear and mens wear department are separate and distinct parts of the business and that there was a significant downturn in the ladies wear section of the business which necessitated a reduction in working hours in that area. I am also satisfied that the respondent made every reasonable effort to ensure that the complainant could obtain additional hours of work and would not be financially disadvantaged. I am therefore satisfied that the respondent did not discriminate against the complainant in relation to her conditions of employment in terms of variation in working hours in terms of gender or race.
4.4.2 Lack of written contract and procedures
Another aspect of the complainant's claim in relation to conditions of employment is the lack of a written contract and procedures on the part of the respondent. The respondent admitted that it provided the complainant with a written contract of employment on request. It also admitted in evidence that it did not provide any other employee with a written contract or procedures; therefore, I am not satisfied that the complainant was treated less favourably on the grounds of race and gender in relation to this aspect of her claim. I find that the complainant has failed to establish facts from which it can be inferred that an Irish employee would have been treated more favourably than her in the circumstances and her complaint on this aspect fails.
In relation to the complainant's claim that she was treated less favourably in terms of conditions of employment regarding maternity attire on grounds of her gender and race, the respondent dealt with this matter in a reasonable manner by way of correspondence and clarified that the complainant could wear any brand or description of maternity wear as she so desired. In light of this, I am not satisfied that the complainant has established that the conduct of the respondent towards her in terms of the issue that arose in relation to her clothing was such that an inference of discrimination can be inferred. Accordingly, I find that the complainant has failed to establish a prima facie case of discrimination on the grounds of gender and race in relation to conditions of employment contrary to the Employment Equality Acts.
4.5 Access to promotion
4.5.1 No evidence was presented by the complainant that she was discriminatorily treated on either the gender or race ground regarding access to promotion. By the respondent's own admission the post of Assistant Manager in the mens wear department arose in circumstances where it was considered that there was no requirement to advertise the post either internally or externally and it did not hold a competition. It also submitted that the staff were not interchangeable between the menswear and womens wear department and that the menswear department of the store carried the bulk of the store's brand items which menswear employees needed to be trained and familiar with. Staff who worked in the menswear section had undergone specific menswear brand training in either the USA or in the respondent's Head Office store in Galway for period of months on block. The respondent also argued that the male employee who was promoted to the post of Assistant Manager in the menswear department was the most suitably qualified person having had 7 years experience in the menswear Tommy Hilfiger brand.
4.5.2 However, in considering this issue, I have to take note of the case of Melbury Developments v Arturs Valpetters where the Labour Court, whilst examining the circumstances in which the probative burden of proof operates stated that a complainant "must first establish facts from which discrimination may be inferred". It added that "Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section85A places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.... In this case it was submitted that the Complainant was treated badly by the Respondent and the Court was invited to infer that he was so treated because of his race. Such an inference could be drawn if there was evidence of some weight from which it could be concluded that persons of a different race or nationality were or would be treated more favourably. All that has been proffered in evidence in support of that contention is a mere assertion unsupported by any evidence".
4.5.3 The respondent has admitted that there was no competition held for the post of Assistant Manager in the menswear department of its store on the basis that it considered the employee who was promoted to this post to be most suitably qualified and experienced person for this post. I accept that staff were not interchangeable in their roles as between ladies and menswear departments and that there were two separate and distinct parts to the business. As the complainant has not presented evidence in relation to this aspect of this claim, i.e. she has not adduced evidence of weight that she was suitably qualified and experienced in the menswear aspect of the Tommy Hilfiger brand, I am not satisfied that the complainant has established facts to demonstrate that she was treated any less favourably on the grounds of race or gender in relation to this aspect of her claim. Accordingly, having regard to the reasoning in the above case the complainant has not adduced evidence to raise a prima facie case of discrimination on the grounds of race in terms of the manner of selection for promotion. Therefore, she has failed to establish a prima facie case of discrimination in respect of this element of her claim.
4.6 Discriminatory dismissal
4.6.1 By virtue of section 18(1)(b) of the Employment Equality Acts 1998 to 2008 pregnancy related discrimination is deemed to be gender discrimination. The Labour Court has held in the case of Intrium Justitia v Kerrie McGarvey that: "It is settled law that special protection against dismissal exists during pregnancy. Only the most exceptional circumstances not connected with the condition of pregnancy allow for deviation from this. It is equally settled law that the dismissal of a pregnant woman (which can, obviously, only apply to women) raises a prima facie case of discrimination on the gender ground. Once such a case has been raised the burden of proof shifts and it is for the respondent employer to prove that discriminatory treatment on the stated grounds did not take place".
4.6.2 In the present case, the respondent accepts that it was aware the complainant was pregnant at the time her employment was terminated. Having regard to the foregoing, I am satisfied that this fact is sufficient to raise an inference of discrimination against the complainant on grounds of her gender. In such circumstances, the burden of proof shifts and it is for the respondent to prove that discriminatory on the stated ground did not take place.
4.6.3 It is for the respondent to prove on the balance of probabilities that there has been no infringement of the principle of equal treatment. It is the respondent's contention that the complainant's employment as a sales assistant was terminated along with another female employee in the ladies wear department of the respondent company due to economic circumstances. The respondent submits that the complainant's nationality or pregnancy had no bearing on her selection for redundancy. It was submitted that she was selected on the same basis as her other colleague who was an Irish national. The respondent submits the criterion used was the lack of business in the ladies wear department. The Tribunal was supplied with financial details of the company from the Company's auditors. Having carefully examined the financial situation that pertained in the company, in particular, the loss of turnover in the ladies wear department at the time the alleged discrimination occurred, I am satisfied that the financial difficulties caused by the downturn in the economy warranted action by the respondent to ensure the continued viability of the company. In such circumstances of a genuine need to reduce costs a reduction in staff numbers in the ladies wear department was justified. As the complainant's employment was terminated in writing in conjunction with another female employee in the ladies wear department on the basis of the Last In First Out in that department and neither was replaced in their posts, I am satisfied that there was a genuine redundancy situation. I am not satisfied that the termination of the complainant's employment was influenced by her pregnancy. I am therefore, satisfied that there were exceptional circumstances which necessitated the laying off of employees in the ladies wear department of the respondent company. Therefore, I find the respondent has rebutted the inference of discrimination on the grounds of gender against the complainant.
4.6.4 The complainant also submits that she was discriminated on the grounds of race in relation to her dismissal. It therefore follows that the complainant must be the subject of less favourable treatment in comparison to another person on the grounds of nationality, i.e. because she is Slovakian. The complainant has not submitted any evidence to the Tribunal that shows that the respondent discriminated against her in selection for redundancy on grounds of nationality. As an Irish employee was also selected to be laid off from the ladies wear department of the respondent company on the basis of the objective criteria of Last In First Out in the ladies wear department, I am not satisfied that the complainant's dismissal and the circumstances in which it occurs constitute facts from which discrimination may be inferred on grounds of race. I find that the complainant has failed to establish facts from which it can be inferred that an Irish employee would have been treated more favourably than her in the circumstances and her complaint on this aspect fails. Accordingly, she has failed to establish a prima facie case of discrimination in respect of this element of her claim.
4.7 Victimisation
4.7.1 The final element of the claim that I must consider is a claim for victimisation. The complainant submits that she was victimised after raising issues with the respondent and was left without payment for holidays. She further submits that she was dismissed while pregnant in circumstances where she was left two stamps short of qualifying for maternity benefit and that this amounts to victimisation within the meaning of the Acts. Victimisation has a specific meaning with the Employment Equality Acts; Section 72(2) provides that "victimisation occurs where discrimination or other adverse treatment of an employee by his or her employer occurs as a reaction to (a) a complaint of discrimination made by the employee to the employer...(g) an employee having given notice of intention to take any actions mentioned in the preceding paragraphs".
4.7.2 The first instance of adverse treatment claimed is that the complainant was not paid for two weeks holiday leave taken in January 2009 and that this constitutes an instance of victimisation while the complainant was still in employment with the respondent. The respondent has submitted that the complainant had used up all of her holiday entitlements under the Organisation of Working Time Act 1997 in that she had already received two weeks paid annual leave just one month after commencing employment. It was submitted that the complainant had been made fully aware when she took unpaid leave in November 2008 that any additional time off would be unpaid leave until such time as she had worked up entitlements. It claims it was acknowledged by the complainant that the two weeks leave she took in January would be unpaid as she had no further entitlements under the 1997 Act. In considering this issue, I find the respondent's evidence more credible in this regard. The Tribunal was furnished with documentation concerning hours of work which clearly demonstrated that the complainant took leave during November 2008 at her own expense. In addition, at this juncture the complainant had been working in Ireland for 4 years and had been furnished via her union representative with a written contract of employment outlining her holiday entitlements. In this regard while the question of annual leave entitlements is primarily the remit of another forum, I am satisfied that the complainant was fully aware of her employment rights and I am not satisfied that the complainant has made out a prima facie case of victimisation within the meaning of the Acts. Accordingly, this aspect of her claim fails.
4.7.3 The second instance of adverse treatment claimed is that the complainant was dismissed while pregnant in circumstances where she was left two stamps short of qualifying for maternity benefit dismissal and that this amounts to victimisation. I have already found that the termination of the complainant's employment was justified and was due to a genuine redundancy situation. Taking all facts and evidence into account, I accept that the termination of the complainant's employment was devoid of any consideration of the complainant's personal circumstances. However, I am not satisfied that this amounts to victimisation within the meaning of the Acts.
5. Decision
5.1 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, race, family status and marital status grounds in terms of Section 6 of the Employment Equality Acts 1998 to 2008 and contrary to Section 8 of those Acts in terms of conditions of work, access to promotion and discriminatory dismissal and contrary to Section 74(2) of the Acts when it terminated her employment in February 2009.
Accordingly, I find in favour of the respondent in this case.
______________
Fiona Lafferty
Equality Officer
30 September 2011