Employment Equality Acts
Decision DEC-E2013-004
PARTIES
Dovile Geidrikaite
(Represented by Tiernan Lowey, B.L.,
Instructed by Crimmins Howard, Solicitors)
- V -
Falls Hotel Limited
(Represented by Lorcan Connolly, B.L.,
instructed by Chambers & Co., Solicitors)
File reference: EE/2010/446
Date of issue: 29 January 2013
Keywords - Employment Equality Acts - Discriminatory Dismissal - Discriminatory Treatment - Gender - Family Status - Race - Prima facie case - Victimisation
1. DISPUTE
1.1 This dispute concerns a claim by the complainant that she was subjected to discriminatory treatment by the respondent on the grounds of gender, family status and race in terms of Section 6(2) of the Employment Equality Acts (hereafter referred to as 'the Acts'), and contrary to section 8 of those Acts.
1.2 The complainant referred a claim of discrimination to the Director of the Equality Tribunal on 14 June 2010 under the Acts. On 20 August 2012, in accordance with his powers under section 75 of the Acts, the Director then delegated the case to Conor Stokes - an Equality Officer - for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts on which date my investigation commenced. Submissions were sought and received from the parties. As required by Section 79(1) and as part of my investigation, I proceeded to hearing on 14 September 2012. Additional submissions were sought and were received on 28 September 2012. All written and oral evidence presented to the Tribunal has been taken into consideration when coming to this decision.
2. SUMMARY OF THE COMPLAINANT'S SUBMISSION
2.1 The complainant submitted that she joined the respondent company in May 2009 and was employed in a permanent capacity as a hotel receptionist until September 2009 when she was transferred in a similar capacity to the hotel's Spa area.
2.2 The complainant submitted that about two months after starting work she requested confirmation of her written terms and conditions of employment on a number of occasions but they were not forthcoming.
2.3 The complainant submitted that on 4 April 2010 she notified her supervisor that she was seven weeks pregnant and asked her how she should inform the General Manager. Her supervisor advised her that it was a bit too early and that she should wait a week or so before informing the GM.
2.4 The complainant submitted that on 6 April 2010 the GM telephoned her to advise her that no hours were available for her at the hotel. The complainant queried how this was possible as the hotel was about to enter its busy period.
2.5 The complainant submitted that she was never rostered again for work by the respondent. She was paid her outstanding entitlements (holiday pay, etc.) on 14 April 2010.
3. SUMMARY OF THE RESPONDENT'S SUBMISSION
3.1 The respondent submitted that there are no primary facts proved in this case that raise an inference of discrimination on any of the three grounds alleged.
3.2 The respondent submitted that it is a family run, family owned hotel and prides itself on family values.
3.3 The respondent submitted that the hotel was very quiet in March and April 2010 and that the complainant was informed in early April 2010 that business was quiet and that costs had to be reduced. The complainant was informed on 5 April that she would have to take her paid holidays and claim stamps until things picked up. This position was confirmed in a letter prepared for the Department of Social Welfare which stated that the complainant was an employee, that she would be working a reduced week in the coming weeks, that her hours would vary depending on occupancy levels and asking the Department to contact the respondent for any further information.
3.4 The respondent submitted that the complainant was not given her P45 as her employment was not being terminated because it was hoped that once business picked up she would be given further hours.
3.5 The respondent submitted that indicative of a downturn in business, it made a Sous Chef and a Duty Manager redundant during this time. Furthermore, the respondent submitted that all staff received confirmation that when the respondent would not have enough work for them, they would have to claim stamps for one or two days per week until business improved.
3.6 The respondent submitted that on 21 July 2010, a part-time receptionist was recruited and worked just 20 days until the end of August 2010 which was the busiest time of the year. The complainant "would have been offered these days if she had not proceeded down another route".
4. FINDINGS AND CONCLUSIONS OF THE EQUALITY OFFICER
4.1 The issue for decision by me is whether or not the respondent discriminated against the complainant on grounds of gender, family status and race, in terms of section 6 of the Acts and contrary to section 8 of those Acts.
4.2 Section 85A of the Acts sets out the burden of proof which applies to claims of discrimination. It requires the complainant to establish, in the first instance, facts from which discrimination may be inferred. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised.
4.3 In the case of Dyflen Publications Limited and Ivana Spasic (ADE/08/7) the Labour Court, in adopting the approach of Mummery LJ in Madrassy v Nomura International plc [2007] IRLR 246, stated that "... the court should consider the primary facts which are relied upon by the complainant in their proper context. It also indicates that in considering if the burden of proof shifts the court should consider any evidence adduced by the respondent ...".
4.4 Having regard to the foregoing, I am satisfied that the following facts have been established:
- The complainant informed her supervisor of the existence of her pregnancy on 3 April 2010
- The complainant was informed that there were no more hours available for her on 6 April 2010
- The complainant was not rostered to work any shifts after 6 April 2010
- The respondent paid the complainant her outstanding holiday and other entitlements on 14 April 2010
- The respondent had been experiencing difficulties and a number of staff were required to work shorter hours in the months leading up to April 2010
- A Sous-Chef and a Duty Manager left the respondent's employment of their own volition around this time
- The complainant was the only employee given no hours during the period in question
- No temporary layoff was agreed with, or notified to, the complainant in April or May 2010
4.5 I am satisfied that other employees were placed on shorter hours during this period but I am not satisfied that others were placed on temporary layoff at this time as suggested by the respondent. There was no attempt to agree a temporary lay-off with the complainant or to notify her that she had been temporarily laid off. On this basis I am satisfied that the complainant was effectively dismissed by the respondent in April 2010.
4.6 The entire period of pregnancy and maternity leave constitutes a special protected period as outlined in the European Court of Justice decisions in Webb v EMO Air Cargo (UK) Ltd [1994] ECR 1-3567, Brown v Rentokil Ltd[1998] ECR 1-04185 and Dekker v Stichting Vormingscentrum [1990] ECR 1-3941. Furthermore, it is settled law that where a dismissal takes place during that special protected period, it raises a prima facie case of discrimination on the gender ground. I am satisfied that the instant case falls to be considered in this light and that the complainant has established facts from which discriminatory dismissal may be inferred on the gender ground.
4.7 When considering whether the respondent has rebutted in the inference of discrimination raised, I am conscious of the arguments put forward by the respondent in defence of their position. I note the argument put forward that they were experiencing difficulties and trying to minimise their outlay. I note that it was claimed that a number of other individuals were given temporary layoff at various times and furthermore that a number of individuals were placed on short-time by the respondent. However, I am not satisfied that the two other named individuals were placed on temporary layoff at this time but rather from the oral evidence given to me at the hearing, I am satisfied that these individuals resigned or otherwise moved on voluntarily. At that time no other individuals were placed on temporary lay off and only some of the individuals on a list of staff provided to me were placed on shorter hours.
4.8 A number of witnesses for the respondent gave evidence at the oral hearing. One of these witnesses, who dealt with HR issues specifically, indicated firstly that although others were given shorter hours, no-one else was given no hours at all on the roster. Secondly, this witness indicated that holiday pay is always issued with the final payslip. Therefore the payment of holiday pay was acknowledging that this was to be the complainant's final payslip. The complainant's supervisor gave evidence at the hearing that she did not tell the Managing Director about the complainant's pregnancy, I am not satisfied that this is indeed the case, as no reason has been put before me as to why the complainant was singled out to be removed from the roster while her colleagues were only given shorter hours.
4.9 Having regard to all of the foregoing, I am satisfied that the complainant was effectively dismissed and that, in the absence of any more cogent reason, such a dismissal was related to the complainant informing the respondent that she was pregnant. Therefore the complainant is entitled to succeed with this element of her complaint.
4.10 Having regard to all the evidence presented in relation to this complaint, I am satisfied that no other evidence has been presented such as to establish that other staff were treated differently to the complainant, save in relation to the dismissal already mentioned.
4.11 Having regard to all the evidence presented in relation to this complaint, I am not satisfied that any evidence has been presented such as to establish a link between any less favourable treatment and either the family status ground or the race ground, therefore the complainant cannot succeed with these strands of her complaint
Victimisation
4.12 The issue of victimisation came to be considered in relation to this case as a result of a comment contained in the respondent's written submissions. The submissions stated that a part-time receptionist was recruited and that "the respondent (sic) would have been offered these days if she had not proceeded down another route". Following the receipt of oral evidence at the hearing, written submissions on the issue of victimisation were requested from the parties and were received two weeks later.
4.13 In the High Court judicial review Siobhan Long v. The Labour Court, Mairead Blackhall, and Powers Supermarkets Ltd t/a Quinnsworth, 1990 No 58 Judicial Review, 25 May 1990], Johnson J established the right of an Equality Officer to consider cases before him or her under provisions of the relevant legislation that the complainant or the complainant's representative have not sought to invoke, if it appears from the evidence that those provisions should be applied to the case at hand.
4.14 In giving the parties two weeks each to make additional written submissions to the Tribunal on the possible victimisation of the complainant, I am satisfied that I have had due regard to The State (Irish Pharmaceutical Union) v. Employment Appeals Tribunal [1987 ILRM 36], in which the Supreme Court held that where a quasi-judicial body introduces any element into a case that has not been previously canvassed, parties must be afforded an opportunity to meet the case.
4.15 Notwithstanding the foregoing, when having regard to the content of both submissions and to my earlier findings, I am satisfied that the complainant's dismissal was discriminatory in nature rather than victimisatory and therefore no further consideration need be given to this matter.
5. DECISION
5.1 Having considered all the written and oral evidence presented to me, I find that a prima facie case of discriminatory treatment on the basis of the family status ground has not been established, and therefore this element of the complaint must fail.
5.2 Having considered all the written and oral evidence presented to me, I find that a prima facie case of discriminatory treatment on the basis of the race ground has not been established, and therefore this element of the complaint must fail.
5.3 Having considered all the written and oral evidence presented to me, I find that a prima facie case of discriminatory treatment on the basis of the gender ground has been established, and therefore this element of the complaint succeeds.
5.4 In accordance with section 82 of the Acts I award the complainant €18,000 in compensation for the discriminatory treatment suffered (equating to about 76 weeks salary). As this does not include any element of remuneration, it is not subject to income tax.
Conor Stokes
Equality Officer
29 January 2013