THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2011
Decision DEC – E2013 – 150
PARTIES
Ms Ileana Cappello (represented by Mr Conor Bowman, B.L., instructed by McCartan & Burke, Solicitors)
and
Parfums Chanel Ltd and Chanel Ltd (represented by A&L Goodbody, Solicitors)
File References: EE/2011/560, EE/2011/569
Date of Issue: 15th November 2013
Keywords: gender – marital status – family status – harassment – S. 14A(2) defence – right to representation in internal investigations – victimisation.
1. Claim
1.1. The case concerns a claim by Ms Ilenia Cappello that Parfums Chanel Ltd and/or Chanel Ltd discriminated against her on the grounds of gender, family status and marital status contrary to Sections 6(2)(a), (b) and (c) of the Employment Equality Acts 1998 to 2011, in terms of conditions of employment and other discriminatory conduct. The complainant also complains of victimisation contrary to S. 74(2) of the Acts.
1.2. The complainant referred a complaint against Parfums Chanel Ltd, a limited company registered in Ireland, under the Employment Equality Acts 1998 to 2011 to the Director of the Equality Tribunal on 27 July 2011. She brought a separate complaint against Chanel Ltd., which is registered in the UK, on 2 August 2011. A submission in respect of both claims was received from the complainant on 18 May 2012. A submission was received from the respondents on 29 June 2012. On 7 October 2013, in accordance with his powers under S. 75 of the Acts, the Director delegated the case to me, Stephen Bonnlander, 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 this date my investigation commenced. As required by Section 79(1) of the Acts and as part of my investigation, I proceeded to hold a joint hearing of the case on 7 November 2013.
2. Summary of the Complainant’s Written Submission
2.1. The complainant states that she commenced working part-time for the Chanel boutique in a major Dublin department store in September 2010, to facilitate her studies at UCD. She worked on Saturdays and Sundays. There were never any complaints about her performance.
2.2. On 28 January 2011, the complainant learned that she was pregnant. She had been feeling unwell previously, but previous pregnancy tests had come up negative.
2.3. On one occasion in January 2011, the complainant asked to change her shift due to exhaustion, but this was denied, because her contract specified that she worked weekends.
2.4. From 27 January 2011 to 31 January 2011, the complainant was certified sick with severe nausea and vomiting by a physician attached to the UCD student health service. From 5 to 6 February 2011, and then 12 to 13 February 2011, she was certified sick with tonsillitis by a GP in Templeogue.
2.5. The complainant states that on 2 February 2011, she had a telephone conversation with her manager, in which she revealed to her manager that she was pregnant. According to the complainant, her manager asked: “So what do you want to do? Do you want to work for Chanel?” as well as: “Are you going to keep the baby?” with “keep” emphasised according to the complainant. She also alleges that her manager asked her whether it was a planned or an unplanned pregnancy. Finally, the manager asked the complainant to keep the conversation private.
2.6. The complainant states that this conversation left her extremely upset and distressed due to its intrusive nature. She also contends that the statements of her manager amounted to pressure on her to resign from the respondents’ employment, and alleges that the ethos within the respondent companies was for women not to be pregnant.
2.7. The complainant also states that her manager sought further clarification on her sick certificates, which she contends amounts to discrimination on the grounds of gender and family status. The complainant does not give any details in her submission as to why such an enquiry should be discriminatory on those grounds.
2.8. Following the phone conversation with her manager on 2 February 2011, the complainant then made efforts to get a copy of her contract of employment and the respondents’ grievance procedure from the second-named respondent’s London HR office. There was a delay in obtaining those documents, which the complainant again alleges is discriminatory on the ground of gender, again without providing a rationale for such an allegation.
2.9. Once the complainant had received those documents, the complainant made an internal complaint about the matter. The respondent’s HR manager investigated the complaint. A delay occurred with regard to the start of the investigation, which the complainant contends constitutes victimisation within the meaning of the Acts. Further delays occurred due to health problems the complainant was experiencing, and which continued until after the delivery of her daughter. The complainant does not give any details of the outcome of the investigation.
2.10. The complainant is at present on carer’s leave from the respondents due to medical problems her daughter experiences.
3. Summary of the Respondents’ Written Submission
3.1. The respondents deny discriminating the complainant as alleged or at all. They submit that once they were informed of the complainant’s grievance, they moved at once to investigate it. However, at the time of making the submission to the Tribunal, the investigation had not been completed first due to the complainants inability to participate due to health problems and then, the respondents state, due to her unwillingness to participate in the investigation without the presence of her solicitors. The respondents submit that the investigation is therefore at an impasse. They have offered the complainant to be accompanied by a friend.
3.2. The respondents wholly reject the complainant’s allegations that the companies’ ethos is in any way slanted against pregnant women. They submit that 70% of their workforce in the UK and Ireland are female, and that many of these women have families or are currently pregnant. The respondents further state that they operate an Equal Opportunities Policy.
4. Conclusions of the Equality Officer
4.1. The issues for decision in this case are whether the complainant was discriminated against and victimised within the meaning of the Acts.
4.2. In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to S. 85A of the Acts. 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.
4.3. In coming to my decision, I have considered all oral and written evidence presented to me by the parties.
4.4. At the beginning of the hearing, counsel for the complainant withdrew the complaint that the delay in furnishing the complainant’s contract of employment was discriminatory on the ground of gender. In fact, the hearing centered on the phone conversation between the complainant and her manager on 2 February 2011, the complainant’s manager’s subsequent enquiries about the complainant’s sick certs and the investigation that the respondent undertook in response to the complainant’s grievance. No evidence was adduced for the statement in the complainant’s submission, that the respondent companies have an ethos that is directed against pregnant women.
4.5. With regard to that telephone conversation, the complainant was emphatic in her evidence that it unfolded exactly as described in her written submission, summarised in paragraph 2.5 above. Her manager, in her evidence, accepted that she made an enquiry of the complainant as to how the complainant would combine her studies and work while pregnant, which, in her words, the complainant “got all wrong”, and that it “came out wrong, and I knew it straight away”. Ms C. expressed her regret about this during her evidence. However, she equally emphatically denied asking whether the complainant would keep her baby, or making enquiries as to whether it was a planned or unplanned pregnancy.
4.6. In light of the fact that the test for harassment under the Acts is a subjective one, I am therefore willing to accept that, whether intentionally or not, parts of the phone conversation which ensued after the complainant told her manager that she was pregnant were handled insensitively by her manager and may therefore be comprehended as constituting harassment on the ground of gender within the meaning of the Acts.
4.7. The question then is whether the defence in S. 14A(2) of the Acts avails the respondents. In the within complaint, it is the second-named respondent who was responsible for handling the complainant’s complaint in the matter, and will be hereafter referred to simply as “the respondent”. The respondent has to show that it “took such steps as are reasonably practicable … to prevent the person from harassing or sexually harassing the victim or any class of persons which includes the victim.” The first step any employer has to take in order to avail of the defense is to have a policy on the matter of harassment and sexual harassment, which the respondents do. The next step is to investigate any grievance a victim of harassment raises about her treatment.
4.8. The complainant, who had left work on 22 January 2011, and was first on sick leave, then on maternity leave, and eventually on carer’s leave for her daughter, and had not returned to work for the respondents at the date of the hearing of the complaint, requested her contract of employment and the respondent’s grievance procedure on 28 February. She received both on 3 March. She then sent a first email to a senior manager of the respondent organisation on 15 April 2011, which she accepted in cross-examination was not received by the addressee. She further accepted that the first time Chanel received her complaint was on 30 May. The senior manager responded on 6 June 2011, and the respondent’s HR manager responded on 13 June 2011. In that letter, Mr T. advised that the earliest he would be able to hold interviews with both the complainant and her manager would be 22 June 2011. The complainant responded that she was not medically fit to do so, but would be available for an interview once she was well again. Mr T. interviewed Ms C. about the complainant’s grievance in Dublin, in an office made available for that purpose by the department store in which the Chanel boutique was located, on 28 July 2011. He read out the complainant’s letter of complaint and then questioned Ms C. about it.
4.9. Due to her poor health, and then the health problems which her newborn daughter was experiencing, the complainant was not available to be interviewed in this matter until 24 February 2012. The correspondence Mr T. sent to the complainant during that time, and until 1 March 2012, is marked by a tone of friendliness, support, and understanding of her difficult personal situation. On 12 April 2012, the correspondence switches to the complainant’s solicitor, who announces to Mr T. that he intended to represent the complainant during the investigation.
4.10. The complainant, in cross-examination, stated that it was the respondent’s policy not to allow her solicitor to be present during the interview. She stated that she was not a member of a trade union, and therefore felt she could not ask a trade union official to be present. She did not want to ask one of her colleagues at work to accompany her, as she feared retributions by the respondent against such a person. Correspondence between Mr T. and the complainant’s solicitor ensued over this issue, until on 25 June 2012, Mr T. wrote to her solicitor with the offer that the complainant could be accompanied by a friend, if the name and occupation of that friend was disclosed to the respondent prior to the meeting for its approval. Ultimately, the complainant accepted under cross-examination, the investigation into her complaint was never completed, and she was never interviewed in relation to it, because of the issue of representation.
4.11. I note that the respondent’s grievance procedure, as far as representation is concerned, wholly conforms to S.I. 146 of 2000, Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order, which states under heading 4. “General Principles”: “For the purposes of this Code of Practice, "employee representative" includes a colleague of the employee's choice and a registered trade union but not any other person or body unconnected with the enterprise.”
4.12. Similarly, S.I. No. 78 of 2002- Employment Equality Act 1998 (Code of Practice) (Harassment) Order 2002, which would have governed the complainant’s complaint since its replacement was only promulgated on 19 June 2012, is silent on the matter of employee representation with the exception of trade union representation. It certainly does not establish a right to be represented by a solicitor during the course of an internal investigation. Mr T., in evidence, also offered the opinion that it was not conducive to internal investigations to bring in legal representation for both the employer and the worker.
4.13. I am satisfied, from the study of the correspondence between the parties, that the respondent took all steps it could reasonably take without the cooperation of the complainant, to follow up on the complainant’s grievance against Ms C. The respondent’s grievance procedure is in conformance with Irish law, and the complainant did not have a right to be represented by a solicitor during the respondent’s internal investigation. Therefore the fault that the investigation, over the course of nearly three years, was never completed, must rest with the complainant, as must the delay which she complains of as victmisation. I consider the issue of the complainant’s original email to the senior manager Ms E., which was somehow lost, to be too insignificant to constitute adverse treatment within the meaning of S. 74(2) of the Acts. I am satisfied that once the respondent was on notice of the complainant’s complaint, it responded as promptly as is reasonable to her requests, and pursued the matter as far as it was able to do without her cooperation. Accordingly, I find that the defense of S. 14A(2) avails the respondent.
4.14. With regard to the complainant’s complaint that Ms C. made enquiries about her sick certs, and in particular, that Ms C. was anxious to know her exact medical condition, I prefer Ms C.’s evidence on this matter. Ms C. explained that she needs to roster ten staff across two boutiques which the respondent runs in an upscale Dublin department store. She further explained that she did not get to see the complainant’s sick certs, and that she needed clarity about the complainant’s situation and how long the complainant would be out of work, in order to plan for the business. Two emails by Ms C. on this matter, which were opened in evidence by the complainant’s representative, do not show a particularly negative attitude towards the complainant. Taken at its height, one might speak of exasperation on the part of Ms C. about the lack of communications from the complainant as perceived by Ms C., and the effects on the staffing of the business. I do not find that these emails prove discrimination of the complainant at the hands of Ms C., apropos of the complainant’s pregnancy.
4.15. No evidence was adduced by the complainant with regard to discrimination on the grounds of marital or family status.
5. Decision
5.1. Based on all of the foregoing, I find, pursuant to S. 79(6) of the Acts, that Parfums Chanel Ltd and Chanel Ltd did not discriminate against the complainant in her conditions of employment on the ground of gender, in that the second-named respondent, of whom the first-named respondent is a subsidiary, took all steps it could reasonably take to respond to the complainant’s complaint of harassment in connection with her pregnancy. The respondents did not discriminate against the complainant on the grounds of marital status or family status in any way. I further find that the respondents did not victimise the complainant within the meaning of S. 74(2) of the Acts.
______________________
Stephen Bonnlander
Equality Officer
15 November 2013
DEC-E2013-150