EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E2013-065
PARTIES
Shauna Richardson
(Represented by Carley & Connellan Solicitors)
AND
Pure Escape Limited (in voluntary liquidation)
(Liquidator Eamonn Leahy of Leahy & Co.)
File reference: EE/20010/880
Date of issue: 8 July 2013
HEADNOTES: Employment Equality Acts - Sections 6 and 8 - Gender - Promotion, Training, & Equal Pay.
1. DISPUTE
1.1 This dispute concerns a claim by Shauna Richardson that she was discriminated against by Pure Escape Limited on the grounds of family status contrary to section 6(2)(c) of the Employment Equality Acts in relation to promotion, training and discriminatory dismissal in terms of sections 8 of the Acts and that she performs "like work", in terms of section 7 of the Employment Equality Acts with a named comparator and is entitled to equal remuneration in accordance with section 19 of the Acts.
1.2 The complainant referred her claim to the Director of the Equality Tribunal on 25 November 2010 under the Employment Equality Acts. On 28 January 2013, in accordance with his powers under section 75 of the Acts, the Director delegated the case to me, Hugh Lonsdale, 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 received from both parties. Since then the respondent has gone into voluntary liquidation and Eamonn Leahy of Leahy & Co. was appointed as Liquidator. In accordance with Section 79(3A) of the Acts and as part of my investigation I proceeded to a hearing on 8 March 2013. The Liquidator gave notice in advance that he would not be attending the hearing. Final correspondence was received on 26 April 2013.
2. COMPLAINANTS' SUBMISSION
2.1 On 10 March 2010 she started working for the respondent as a Beauty Therapist. She was employed on a six month probationary contract, working 20 hours per week and earning €9.50 per hour and received commission of 10% on products and 5% on treatment sales (increasing to 10% if revenue targets met). There was also a training agreement to repay 100% of all training costs if she left within 12 months.
2.2 The complainant submits that shortly after she started working for the respondent she found out she was pregnant with twins. On 28 August 2010 her probationary period was extended by 3 months. Then her hours of employment were changed, regular bookings were not made and then appointments stopped altogether.
2.3 The complainant submits she requested 'Guinot' facial products training before going on maternity leave and was told there was nothing this side of Christmas but another employee who started in October 2010 was due to go on this training before Christmas. The complainant contends this lack of training affected her ability to sell products and earn commission. She went to the respondent and said she should have been first to go on the training and the respondent said realistically there was no point in her doing the training before going on maternity leave. The reduced sales meant she was paid less than her comparator.
2.4 In June and July 2010 the complainant attended I-Lipo training. The course required a score of 70% to pass. She was told she had not passed then, when she failed a second time, she was given a verbal written warning. She asked for feed back on this training and her results but was not given them. This meant she could not give this treatment.
2.5 The complainant submits that in October 2010 she was advised by her doctor not to perform massage therapy because of her pregnancy. She remained fully capable of providing other treatments but no appointments were made for her and her work load was reduced considerably. Two other female employees who both started in October 2010 were very busy with appointments. She questioned management about this and was told that management shared the workload between employees.
2.6 At a meeting on 10 November 2010 she was told by the respondent that they were not able to offer her a permanent position because of the downturn in business and because of the complainant's low retail and treatment sales. They also referred to her probationary period being extended. The complainant submits she was never warned about her decrease in sales and had actually been praised by management some weeks earlier for her retail sales.
3. RESPONDENT'S WRITTEN SUBMISSION
3.1 The respondent submits that the complainant was employed from 15 February to 10 November 2010 as a part-time beauty therapist. She was employed on an initial probationary period which was the same for all employees. On 28 July 2010 her probationary period was extended because of her poor revenue sales performance. The complainant was helped to improve her sales by transferring her shifts to the busiest part of the day, with the complainant's agreement.
3.2 Another employee, who started at the same time, also had her probationary period extended but she was not pregnant.
3.3 In June 2010 the complainant advised the respondent that she was pregnant and was due to go on maternity leave in January 2011.
3.4 The respondent submits that the complainant was provided with a significant level of training, this included:
TEN full skincare training (7&8 March & October)
Minx & Shellac training - 1 day April
Pure Fiji training - 1 day April
Fuschia Make Up - 1 day April
Hot Stone Massage training - 1 day April
Medi Pedi training - 1 day May
Advanced Waxing - 1 day May
I-lip training - 1 day June
The I-lip training was independently assessed and the complainant failed the assessment twice. Another employee also failed twice. The two were treated the same and were both given formal warnings. The complainant was also booked for Mama Mio training (3 days) but she was unable to attend because of sickness. She was trained to carry out 90% of treatments and had as much opportunity as the other therapists.
3.5 The respondent submits that appointments were booked fairly.
3.6 The respondent submits that the complainant did not 'expressly' request Guinot training to increase sales performance. They contend that the Guinot treatment was not popular enough to explain the discrepancy in sales performance. The named comparator achieved greater revenues through sales of other products. From February to November 2010 she sold 135 facials (15 Guinots) whilst the complainant sold 57 facials.
3.7 The respondent submits that they suffered a major reduction in business and staff were told this in September 2010 at a staff meeting. The employees agreed to each forego one shift per week. This meant the complainant was the only employee not to have hours reduced as she had been transferred to the busiest times to help her improve sales.
3.8 The respondent submits that in November 2010 the complainant was fairly selected for redundancy; on the basis of her fall in income. On 9 December 2010 two other part timers who had been taken on in October 2010 were also made redundant. On 13 December 2010 the full time receptionist was made redundant.
3.9 The respondent submits that they were in business for 8 years and, because of the nature of the business, employed females exclusively. They regularly encountered pregnancies and always dealt with them with full regard for the law; no other claims were brought by any other employee.
4. FINDINGS & CONCLUSIONS OF THE EQUALITY OFFICER
4.1 This claim was made on the grounds of family status. However, it is related to the complainant's treatment by the respondent after they became aware she was pregnant. The case law of the European Court of Justice (ECJ) is quite clear. In Dekker v Stichting Vormingscrentrum voor Jong Volwassen, Case C-177/88, it held that unfavourable treatment as a result of or connected to pregnancy is direct discrimination on grounds of gender. Furthermore, section 6 (2A) of the Employment Equality Acts states:
"Without prejudice to the generality of subsections (1) and (2), discrimination on the gender ground shall be taken to occur where, on a ground related to her pregnancy or maternity leave, a woman employee is treated, contrary to any statutory requirement, less favourably than another employee is, has been or would be treated."
This means that claims of discrimination made in relation to pregnancy are claims of direct discrimination on the grounds of gender.
4.2 Shortly before the hearing it came to my attention that the complainant had taken a claim under the Unfair Dismissals Acts, 1977 - 2007, that a hearing of that claim had taken place in the Employment Appeals Tribunal and they had issued a Determination. Section 101(4)(c) of the Employment Equality Acts states: "an employee who has been dismissed shall not be entitled to seek redress under this Part in respect of the dismissal if .... the Employment Appeals Tribunal has begun a hearing into the matter of the dismissal". I advised the complainant's representative and the complainant withdrew her claim of discriminatory dismissal. Therefore, I have to decide if the complainant was discriminated against in relation to promotion and training and if she is entitled to equal remuneration to a named comparator on the grounds of gender.
4.3 In reaching my decision I have taken into account 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. The respondent is in voluntary liquidation but they submitted a written response to the complainant's submission on 16 June 2011 before they went into liquidation on 20 September 2011. As the company is in voluntary liquidation I was unable to question the respondent on its' contents at the hearing but I was able to question the complainant on its' contents. I therefore consider it fair for me take into account the information in the respondent's submission and give it appropriate weight as evidence.
4.4 Section 85A (1) of the Employment Equality Acts states: "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." This means that the complainant must establish primary facts upon which the claim of discrimination is grounded and then the burden of proof passes to the respondent.
Training
4.5 The complainant contends that she was discriminated against in relation to the training she received after she informed the respondent she was pregnant. The information provided by the respondent confirms the complainant's submission that she received no training after they knew she was pregnant, apart from one day linked to previous training. Furthermore, whilst they contended she received a significant level of training they did not dispute the complainant's assertion that she was denied the Giunot training because of her pregnancy. Section 8 (7) of the Acts states:
"Without prejudice to the generality of subsection (1), an employer shall be taken to discriminate against an employee in relation to training or experience for, or in relation to, employment if, on any of the discriminatory grounds, the employer refuses to offer or afford to that employee the same opportunities or facilities for employment counselling, training (whether on or off the job) and work experience as the employer offers or affords to other employees, where the circumstances in which that employee and those other employees are employed are not materially different."
I accept the complainant's evidence that another employee who started in June 2010 went on the Guinot training in August 2010, whilst she started in March 2010 and did not undertake this training. The only reason given in the complainant's evidence, and uncontroverted by the respondent's submission, was that she was pregnant and the respondent decided to delay the training until she returned to work after her maternity leave. I find that this amounts to discriminatory treatment in relation to training.
Promotion
4.6 The complainant contends that she was discriminated against in relation to promotion when her probationary period was extended and the respondent delayed her appointment to a permanent and secure position. Section 8 (8) of the Acts states:
"Without prejudice to the generality of subsection (1), an employer shall be taken to discriminate against an employee in relation to promotion if, on any of the discriminatory grounds --
(a) the employer refuses or deliberately omits to offer or afford the employee access to opportunities for promotion in circumstances in which another eligible and qualified person is offered or afforded such access, or
(b) the employer does not in those circumstances offer or afford the employee access in the same way to those opportunities.
It is my conclusion that the ending of a probationary period and the making a someone permanent does not amount to promotion. Therefore, I find that the complainant has not established a prima facie case of discrimination in relation to promotion.
Equal Pay
4.7 The claim of equal pay relates to the complainant's inability to earn commission because she was not trained to carry out certain treatments, particularly the Giuinot facial treatment which she contends was the most popular and lucrative. The complainant contends this was even more important when she was advised by her doctor not to carry out massages from October 2010 onwards.
4.8 The respondent claims that the Guinot treatment would not have effected the complainant's commission, as it was not that popular. They submitted figures which shows that from February to November 2010 the comparator sold 135 facial treatments (of which 15 were Guinot), whilst the complainant sold 57 facial treatments. The respondent does not accept the complainant's reasons for the difference in sales. They contend that the named comparator was better at selling than the complainant. Also, they contend they gave the complainant assistance to improve her commission by giving her more of the busier shifts.
4.9 I have concluded that the respondent did discriminate against the complainant by not sending her on Guinot training because she was pregnant. However, the respondent gave written evidence that the comparator in this equal pay claim sold many more treatments than the complainant and only a small proportion of these were Guinot treatments. I put this evidence to the complainant at the hearing and she could not disagree with the figures submitted by the respondent. I therefore conclude that the complainant is unable to establish facts to support her claim of discrimination in relation to equal pay. I find, in accordance with section 19 (5) of the Acts which states that "nothing in this Part shall prevent an employer from paying, on grounds other discriminatory grounds, different rates of remuneration to different employees" that any difference in pay was for reasons other than gender and the complainant has failed to prove his claim of equal pay in relation to the named comparator.
5. DECISION
I have investigated the above complaints and make the following decisions in accordance with section 79 of the Acts that:
- the respondent did discriminate against the complainant in relation to training,
- the complainant has failed to establish a prima facie case of discrimination in relation to promotion, and
- the complainant has failed to establish a prima facie case of equal pay.
I order the respondent to pay the complainant €4,000 in compensation for the discriminatory treatment suffered. This figure represents compensation for infringement of her rights under equality legislation in relation to discrimination and does not include any element relating to remuneration, and is therefore not taxable.
____________________
Hugh Lonsdale
Equality Officer
8 July 2013