EQUALITY OFFICER'S DECISION NO: DEC-E/2012/015
PARTIES
STRZELECKA
(REPRESENTED BY RICHARD GROGAN & ASSOCIATES - SOLICITORS)
AND
EARLSFORT CENTRE HOTEL PROPERTIES LTD.
(REPRESENTED BY IBEC)
File No: EE/2009/718
Date of issue: 7 February, 2012
Headnotes: Employment Equality Acts 1998- 2008 - sections 6& 8 & race - discriminatory treatment- conditions of employment.
1. DISPUTE
This dispute involves a claim by Ms. Ewa Strzelecka, who is a Polish national, that she was (i) discriminated against by the respondent in respect of access to employment on grounds of gender, race and family status in terms of section 6(2) of the Employment Equality Acts, 1998 -2008 and contrary to section 8 of those Acts, (ii) discriminated against by the respondent in respect of her conditions of employment on grounds of gender, race and family status in terms of section 6(2) of the Employment Equality Acts, 1998 -2008 and contrary to section 8 of those Acts, (iii) harassed by the respondent on grounds of race and family status in terms of section 6(2) of the Employment Equality Acts, 1998 -2008 and contrary to section 14A of those Acts, (iv) sexually harassed by the respondent on grounds of gender in terms of section 6(2) of the Employment Equality Acts, 1998 -2008 and contrary to section 14A of those Acts and (v) dismissed by the respondent in circumstances amounting to discrimination on grounds of gender, race and family status in terms of section 6(2) of the Employment Equality Acts, 1998- 2008 and contrary to section 8 of those Acts.
2. BACKGROUND
2.1 The complainant commenced employment with the respondent as a part-time Accommodation Assistant in June, 2004 and was appointed to that role on a full-time basis in September, 2005. The complainant was on maternity leave from 1 February, 2008 - 24 November, 2008 and returned to work in the full-time position she had held immediately before that leave commenced. In June, 2009 the complainant tendered her resignation but after discussion with the respondent this was withdrawn. The complainant tendered her resignation a second time in mid-July, 2009 but remained in employment until 30 August, 2009. During this period she was given a revised contract of employment but never signed it. The complainant was not assigned any shifts after 30 August, 2009 and submits that this constitutes less favourable treatment of her on grounds of gender, race and family status contrary to the Acts. The complainant further states that the respondent denied her access to a redundancy scheme in September, 2009 and contends that this behaviour amounts to discrimination of her on grounds of gender, race and family status contrary to the Acts. The respondent rejects the complainant's assertions in their entirety. She further states that she was dismissed by the respondent in circumstances amounting to discrimination on grounds of gender, race and family status contrary to the Acts.
2.2 The complainant referred a complaint under the Employment Equality Acts, 1998 -2008 to the Equality Tribunal on 28 September, 2009. In accordance with his powers under the Acts the Director delegated the complaint to the undersigned - Vivian Jackson, 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 26 October, 2011 - the date the complaint was delegated to me. A hearing on the complaint took place on 2 November, 2011. At the outset of this Hearing the complainant's representative withdrew (i) all aspects of the complaint on the gender ground, including the claim of sexual harassment, (ii) those aspects of the complaint in respect of harassment of the complainant on grounds of family status and race, (iii) the alleged discriminatory dismissal of the complainant and (iv) those aspects of the complaint in respect of access to employment on grounds of family status and race.
2.3 The only aspects of the complaint contained on the original referral form which remained were those issues connected with the alleged less favourable treatment of the complainant on grounds of race and family status in respect of her conditions of employment - in particular the alleged failure of the respondent to provide her access to a redundancy package in September, 2009. However, at the outset of the Hearing the complainant's representative also sought to introduce the alleged failure of the respondent to assign the complainant shifts after 30 August, 2009 as part of the conditions of employment claim. This was the first occasion on which this matter had been raised and an issue of compliance with the timelimits in terms of section 77 of the Acts was raised. However, in an effort not to elongate the investigation I decided to take the complainant's evidence on the substantive aspects of this element of her complaint and allow the respondent to reserve its position on the matter (if required) and furnish a submission on it by an agreed date post the Hearing. I also requested that each party should file a submission on the timelimit issue. However, in the course of the Hearing the respondent's HR Manager stated she was of the view that the complainant was an employee between September, 2009 and February, 2011 - when the respondent recommenced assigning her shifts. In those circumstances I subsequently wrote to the parties advising the "shift" aspect of the complaint was properly before the Tribunal for investigation and there was no need to file submissions on the timelimit issue. However, a number of other points which arose at the Hearing required clarification and gave rise to correspondence between the parties and the Equality Officer and this process concluded at end December, 2011.
3. SUMMARY OF COMPLAINANT'S CASE
3.1 The complainant is a Polish national. She states that she commenced employment with the respondent as a part-time Accommodation Assistant in June, 2004 and was appointed to that role on a full-time basis in September, 2005. She adds that she was on maternity leave from 1 February, 2008 - 24 November, 2008 and returned to work in the full-time position she had held immediately before that leave commenced. The complainant states that she tendered her resignation in June, 2009 for personal reasons - she had childcare difficulties - but after discussion with the respondent this was withdrawn and she was given a months' unpaid leave. She states that she returned to work in early July, 2009 and worked full-time hours. In the submission filed on her behalf in January, 2010 it was alleged she was told by a member of the respondent's Management that she would have to finish full-time hours and go part-time as she had a child and it was submitted that this amounts to discrimination of her. In the course of the Hearing the complainant gave evidence that she requested part-time hours in July, 2009 because she had difficulties with childcare and was offered same in August, 2009 on foot of a revised contract of employment. The complainant added that the terms set out in the revised contract were unacceptable to her and she refused to sign it. She adds that the last shift she was assigned was 30 August, 2009. The complainant states that she never made any effort to contact the respondent seeking an explanation as to why she received no shifts after this date. In the course of the Hearing she also confirmed that she never contacted the respondent with a view to discussing the unacceptable clauses in this revised contract of employment and never signed it. She also states that the respondent made no further contact with her until Ms. D (who works in the respondent's HR Department) contacted her in late January, 2011 advising that she (the complainant) was still registered on the respondent's system as an employee and asked if she was interested in returning to work. The complainant states she advised Ms. D that she was interested in returning to work and she (the complainant) subsequently met with Ms. B (the current HR Director) and resumed work on 21 February, 2011 on a full-time basis as a member of the respondent's staff in its Accommodation Department. It is submitted on her behalf that the alleged treatment of her constitutes discrimination of her on grounds of race and/or family status contrary to the Acts.
3.2 The complainant states that in the course of a meeting between staff and Management in May/June, 2009 she became aware the respondent was offering a redundancy scheme to employees. She states that she approached a member of the Respondent's HR Department (Ms. P) who told her she could not apply because she was ineligible. The complainant states that on the basis of this information she did not make an application for the scheme before the closing date which was early June, 2009. The complainant adds that some weeks after this meeting she received a phone call from a different member of staff in the respondent's HR Department asking if she (the complainant) was still interested in the redundancy scheme and if so, that she should apply immediately. The complainant states that she e-mailed Ms. X, the respondent's General Manager, on 2 September, 2009 applying for the redundancy scheme. The complainant further states that she received a replying e-mail from Ms. X in which she (Ms. X) stated the complainant was ineligible for the scheme because she had requested part-time working hours. The complainant adds that on receipt of this e-mail she went to Ms. X's Office and in the course of this discussion Ms. X asked if she (the complainant) wished to remain in work and she replied that she did. The complainant states that Ms. X then told her she needed to sign the revised contract of employment which had issued to her. In the course of the Hearing the complainant stated that she did not do so because the terms were unacceptable to her and she also confirmed that she never subsequently pursued the matter of redundancy with the respondent. She states that two other employees Mr. A, who is Slovakian and worked in Room Service and Ms. Z, who is Irish and was a Supervisor in the Accommodation Department, were both made redundant under the scheme. It is submitted on behalf of the complainant that the alleged behaviour of the respondent in this matter constitutes less favourable treatment of her on grounds of race. The complainant was unable to furnish details of an employee of a different family status to her in comparison to whom she was treated less favourably on that ground contrary to the Acts.
4. SUMMARY OF RESPONDENT'S CASE
4.1 The respondent accepts the complainant's employment history at detailed at paragraph 3.1 above. It states that she was offered part-time hours in August, 2009 at her request because she had childcare difficulties and was unable to work full-time hours. The respondent adds that the complainant was issued a revised contract of employment to reflect these new arrangements - she had previously worked on a full-time basis -and despite reminders the complainant failed to sign and return same. In the course of the Hearing Ms. B (the current HR Director) accepted that there were errors in this revised contract but was unable to offer any comment on how those errors arose or why it was issued in that format. She added that several of the people whom the complainant had been dealing with on the issue were made redundant around this time and from her (Ms. B's) subsequent examination of the available papers (in January, 2011) it appears personnel in the respondent believed the complainant was unavailable for work. She adds that due to this confusion the complainant was not offered shifts from 30 August, 2009, although she (the complainant) continued to remain on the respondent's system as an employee.
4.2 The respondent (Ms. B) states that in January, 2011 she noticed the complainant was recorded as an employee on the respondent's system and she instructed that the complainant should be contacted and asked about her availability for work - the respondent had vacancies at that time. The respondent (Ms. B) states that she met with the complainant on 9 February, 2011 and 16 February, 2011 and the complainant was returned to the shift roster (on a full-time basis) in the Accommodation Department from 21 February, 2011. Ms. B adds that the restructuring package agreed with the relevant trade union in 2009 which resulted in a significant number of redundancies at that time, included a clause termed a "stay package" which provided for a once-off lump sum payment to staff who remained in the respondent's employment. The amount of this lump sum was linked to years of service. Ms. B states that the complainant was paid this lump sum on her return to work and that the amount paid was calculated on the basis the complainant was in the respondent's employment during the period 30 August, 2009 to 20 February, 2011. In the course of the Hearing Ms. B stated that in her opinion the complainant never ceased to be an employee of the respondent during this period. It is submitted on behalf of the respondent that the complainant was not assigned shifts during the aforementioned period due to a breakdown in communication between the parties. It is further submitted on behalf of the respondent that this breakdown in communication can be attributed to both the complainant and respondent and that it had nothing to do with the complainant's race or family status in terms of the Acts.
4.3 The respondent states that as part of a major restructuring process in 2009 fifty-three employees were made redundant under a scheme negotiated by the respondent with the relevant trade union. It states that the consultation process with employees commenced in early May, 2009 and that as part of this process there were meetings between staff and Management. The respondent states that the complainant was a Housekeeping Assistant working in its Accommodation Department and that the redundancy scheme was not available to personnel at that level in that Department. In this regard it furnished the Tribunal with a list of all fifty-three employees who were made redundant with their grade and location. It adds therefore that it is very likely the complainant was informed she was not eligible for the scheme, although it rejects the complainant's assertion that her work pattern - part-time hours- was mentioned by way of explanation. Without prejudice to this argument it submits that the two comparators cited by the complainant are not appropriate comparators because they were not in a comparable situation to her - one was in Room Service and the other was a Supervisor in the Accommodation Department - and redundancies were sought in those areas. Finally, without prejudice to either of the aforementioned arguments the respondent states that the closing date for receipt of applications for the scheme was 5 June, 2009. It adds that the first occasion the complainant made any formal written enquiry about the scheme was her e-mail of 2 September, 2009. The respondent states that even if the complainant had been eligible for the scheme her application was made almost three months after the closing date. In summary, the respondent rejects the complainant's assertion that she was discriminated against in respect of access to the redundancy scheme.
5. CONCLUSIONS OF EQUALITY OFFICER
5.1 The issue for decision by me is whether or not the respondent discriminated against the complainant on grounds of race and/or family status, in terms of section 6(2) of the Employment Equality Acts, 1998-2008 and contrary to section 8 of those Acts as regards her conditions of employment. In reaching my Decision I have taken into consideration all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence presented at the Hearing.
5.2 Before proceeding to deal with the substantive aspects of the complaint I must address the issue of whether or not that element of the complainant's claim in relation to the alleged failure of the respondent to assign her shifts after end August, 2009 is validly before the Tribunal for investigation. The complainant had originally claimed discriminatory dismissal and whilst neither her Referral Form (EE1) nor the submission filed on her behalf stated on what date this alleged dismissal took place, the EE1 Form appeared to me to suggest that it happened in August/September, 2009. At the outset of the Hearing the complainant's representative withdrew the allegation of discriminatory dismissal and sought to amend the complaint by introducing a claim of discriminatory treatment in respect of the alleged failure of the respondent to assign the complainant shifts after that date. In the circumstances, I was satisfied that there were issues about whether or not this element of the complaint was validly before the Tribunal for investigation. However, in an attempt not to delay the investigation I decided to proceed to take evidence on the matter and requested the complainant's representative, in the first instance, to file a submission setting out the arguments why this aspect of the complaint was validly before the Tribunal. However, in the course of the Hearing the respondent's HR Director (Ms. B) stated that the complainant never ceased to be an employee of the respondent. Having regard to this statement and noting the judgement of McGovern J in Louth VEC v The Equality Tribunal wherein he stated that Form EE1 is only intended to set out, in broad outline, the nature of the complaint and it is permissible therefore to amend a claim as set out in that form provided the general nature of the claim remains the same and no prejudice arises to the respondent, I decided that the element of the complaint concerned with the alleged failure of the respondent to assign the complainant shifts after August, 2009 was validly before the Tribunal for investigation. In reaching this decision I was satisfied that the complainant originally advanced, inter alia, a claim of discrimination on grounds of race and/or family status as regards her conditions of employment. That element of the complaint which her representative sought to introduce at the Hearing was also one of alleged discriminatory treatment on the same grounds as regards her conditions of employment. I was also satisfied that no issue of prejudice to the respondent arose - in light of Ms. B's comment - and the fact the respondent was afforded the opportunity to file a submission in response to the complainant's allegations after the Hearing.
5.3 Section 6(1) of the Employment Equality Acts, 1998 - 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) of the Acts defines the discriminatory ground of race as follows - "as between any two persons . ..... that they are of different race, colour, nationality or ethnic or national origins...". The same section provides similar protection against discrimination on the ground of family status and family status is defined at section 2 of the Acts as follows - [having] responsibility for (a) as a parent or a person in loco parentis in relation to a person who has not attained the age of 18 years ......"
It follows therefore that the complainant in the instant case must be the subject of less favourable treatment in comparison to another person on grounds that she is Polish and/or she has a child.
5.4 Section 85A of the Employment Equality Acts 1998 - 2008 sets out the burden of proof which applies to claims of discrimination. It provides, in effect, that where facts are established by or on behalf of a complainant from which discrimination may be inferred, it shall be for the respondent to prove the absence of discrimination. The test for applying that provision is well settled in a line of Decisions of this Tribunal and the Labour Court and it requires the Complainant to prove the primary facts upon which she relies in seeking to raise an inference of discrimination. It is only if this initial burden is discharged and the Equality Officer is satisfied that the facts as established are of sufficient significance to raise a presumption of discrimination, that the burden of proving that there was no infringement of the principle of equal treatment passes to the respondent. If the complainant does not discharge the initial probative burden required her claim cannot succeed.
5.5 I will address first the complainant's allegation that she was treated less favourably by the respondent on grounds of race and family status in June, 2009 when it denied her access to a redundancy package it had on offer at that time. The complainant states that when she made enquiries to HR about the scheme she was told she was ineligible and did not apply by the closing date - which was early June, 2009. The respondent accepts that this could have happened as the scheme was not open to Housekeeping Assistants in its Accommodation Department, which is what the complainant's grade was at that time and the area within which she worked. The complainant states that she applied for the scheme on 2 September, 2009 in response to a telephone call from another member of staff in the respondent's HR Department and that Ms. X (the respondent's General Manager) subsequently e-mailed her refusing her application because she (the complainant) has sought part-time hours. The complainant was unable to name the person who made this phone call and was also unable to produce a copy of Ms. X's e-mail. In addition, the complainant's e-mail of 2 September, 2009, wherein she applies for the scheme, makes no reference to the fact that her application was prompted by the alleged phone call a few days earlier - an issue I consider might have been included given the deadline for receipt of applications had passed. Instead this e-mail states that she did not apply for the redundancy scheme the previous June because "she did not receive enough information how to follow the procedure". This comment conflicts with the evidence the complainant gave at the Hearing where she stated that after the meetings between Management and staff in May, 2009 in connection with the scheme "she understood what the package was and that there was a deadline of June to apply". It is also in conflict with her evidence that she was under the impression she was ineligible for the scheme - which was the reason she gave at the Hearing for her failure to apply in June, 2009.
5.6 In the course of the Hearing the complainant stated that she had sought to move from full-time to part-time working hours for family reasons from July, 2009 and confirmed that she had been offered part-time hours in August, 2009. This is in conflict with the statement filed on her behalf in January, 2010 wherein it is stated the complainant was told by the respondent that she had to move from full-time to part-time hours because she had a baby. In addition, the respondent furnished me with a copy of the Agreement between it and the trade union covering the Redundancy /Restructuring process for the Hotel. This document states that the closing date for application to the scheme was 5 June, 2009. It is clear to me that the respondent received sufficient applications for the scheme from eligible staff by the closing date to allow the scheme to be successful. In the circumstances I can find no reason why the respondent would seek further applications from other staff, including the complainant, almost three months after the closing date. I do not therefore accept the complainant's evidence that she received a phone call from HR in late August, 2009 suggesting she should apply for the scheme.
5.7 In support of her assertion she was treated less favourably as regards this element of her complaint the complainant cites two colleagues- Mr. A, who is Slovakian who worked in Room Service and Ms. Z, who is Irish and was a Supervisor in the Accommodation Department, both of whom were made redundant under the scheme. The respondent argues that these employees were not in a comparable situation to the complainant as the former was a Porter and the latter was the Assistant Accommodation Manager. The respondent furnished me with details of all fifty-three staff who were made redundant under the scheme and I am satisfied that the details set out above are correct. I am further satisfied from these details that at that time (i) no Housekeeping Assistants were made redundant and (ii) there were Polish employees in other areas of the Hotel who were made redundant. In light of my comments in this and the preceding two paragraphs I find that the complainant has failed to establish facts from which it could be inferred that she was treated less favourably on grounds of her Polish nationality and this element of her complaint cannot therefore succeed. The complainant has failed to adduce any evidence whatsoever that she was discriminated against on grounds of family status as regards this aspect of her complaint and this also fails.
5.8 The second element of the complainant's claim is that she was treated less favourably on grounds of race and/or family status when the respondent failed to assign her shifts after August, 2009. The respondent agrees that the complainant was not assigned shifts after this date but states that due to the confusion which prevailed between the complainant and the respondent at that time and the departure of staff as part of the redundancy package, it believed the complainant was not available for work and thus she was not rostered. In the course of the Hearing the complainant confirmed that in August, 2009 she had been offered part-time working hours by the respondent (in response to her request) and that she had been issued with a revised contract of employment reflecting these changes. She also stated that the terms set out in the revised contract were unacceptable to her and she refused to sign it, adding that she never contacted the respondent with a view to discussing the unacceptable clauses. She also stated that she never contacted the respondent seeking an explanation as to why she received no shifts after end August, 2009, an option which was available to her. Indeed, her actions in this instance are in contrast to the previous occasions when the complainant had issues with the respondent - on two occasions in June/July, 2009 she resigned because she was unable to work full-time hours - prompting a response from the respondent which on one occasion resulted in her receiving a period of unpaid absence. I am satisfied that the personnel in the respondent who were dealing with the complainant on the issue of her revised contract of employment ceased employment as part of the redundancy package - departures were phased between June- August, 2009. I am further satisfied that in the confusion which ensued the respondent believed the complainant was no longer interested in work and that, in effect, she fell between the cracks - a factor which contributed significantly to her not being assigned shifts during the period. It is noteworthy that the complainant was never removed from the respondent's database of employees and her placement on same was only noticed when Ms. B checked the records in early, 2011. Thereafter, the complainant was contacted by the respondent (in February, 2011) and was placed back on the roster and assigned shifts. Moreover, she was paid a loyalty bonus which took account of the period between August, 2009-February, 2011 as reckonable service for the purposes of calculating that payment. I have carefully considered all of the evidence adduced by the parties on this issue and I am satisfied, on balance, that the failure of the respondent to assign the complainant shifts during this period was an oversight and the treatment of her does not amount to discrimination on grounds of race and/or family status contrary to the Acts.
6. DECISION OF THE EQUALITY OFFICER
I have completed my investigation of this complaint and in accordance with section 79(6) of the Employment Equality Acts, 1998-2008 I issue the following decision. I find that the complainant
(i) has failed to establish a prima facie case of discrimination on grounds of race in terms of section 6(2) of the Employment Equality Acts, 1998 -2008 and contrary to section 8 of those Acts in respect of her conditions of employment and
(ii) has failed to establish a prima facie case of discrimination on grounds of family status in terms of section 6(2) of the Employment Equality Acts, 1998 -2008 and contrary to section 8 of those Acts in respect of her conditions of employment
and her complaint fails in its entirety.
_______________________________________
Vivian Jackson
Equality Officer
7 February, 2012