THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2011
Decision DEC-E2014-033
PARTIES
Ms Liga Skuja (represented by Richard Grogan and Associates, Solicitors)
and
Slieve Russell Hotel Property Ltd t/a Slieve Russell Hotel (represented by Mr Mark Rogers, B.L., instructed by O’Shea Barry Solicitors)
File References: EE/2013/210
Date of Issue: 14th May 2014
Keywords: race – gender – discrimination in terms and conditions of employment – harassment – disciplinary measures – disputed gesture does not fulfil the connection to protected characteristic condition of S. 14A(7) of the Acts – no prima facie case
1. Claim
1.1. The case concerns a claim by Ms Liga Skuja that Slieve Russell Hotel Property Ltd t/a Slieve Russell Hotel discriminated against her on the grounds of gender and race contrary to Sections 6(2)(a) and (h) of the Employment Equality Acts 1998 to 2011, in terms of harassment, conditions of employment and other discriminatory conduct.
1.2. The complainant referred a complaint under the Employment Equality Acts 1998 to 2011 to the Director of the Equality Tribunal on 5 March 2013. A submission was received from the complainant on 15 August 2013. A submission was received from the respondent on 24 September 2013. On 13 February 2014, 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 12 March 2014. Additional submissions were requested from both parties at the hearing of the complaint and were received on 20 and 25 March 2014, respectively. The last piece of correspondence relating to the complaint was received on 9 April 2014.
2. Summary of the Complainant’s Written Submission
2.1. The complainant is a Latvian national, who commenced working for the respondent as an accommodation assistant in June 2012. She submits that she is paid less than the national minimum wage, which she contends is discriminatory on the ground of race.
2.2. She further complains that she was approached by the Accommodation Manager and told to wash her clothes daily and to use anti-perspirant. According to the complainant, the Accommodation Manager made grimaces and gestures as if she was getting sick, and said that the complainant had a bad stench.
2.3. The complainant submits that the manager gesticulated and grimaced this way because the complainant had bad English. She considered the gestures and grimaces to be highly offensive, and submits that this is particularly so to Latvians. The complainant submits that she made a complaint about the matter, but that the respondent did not deal with it.
3. Summary of the Respondent’s Written Submission
3.1. The respondent denies discriminating the complainant as alleged or at all. With regard to the complainant’s pay, it points out that this matter had been heard by a Rights Commissioner on 27 August 2014 and that the decision was awaited by the time of making the submission.
3.2. With regard to the complainant’s personal hygiene, it submits that this was indeed a cause of concern for her managers, as the respondent is a four star hotel, and such issues with staff therefore can have an impact on customer satisfaction and reputation. For this reason, the importance of good personal hygiene is underlined in the staff handbook, which the complainant received and for which she signed.
3.3. The respondent accepts that the Accommodation Manager raised the issue with the complainant, but denies that she grimaced and gestured as alleged. It further denies that raising this issue with the complainant had anything to do with her ethnicity or gender.
3.4. Finally, the respondent denies strongly that the complainant was not given an opportunity to engage in the respondent’s grievance procedure.
4. Conclusions of the Equality Officer
4.1. The issues for decision in this case are whether the complainant was discriminated against within the meaning of the Acts and whether she experienced harassment connected to her gender and/or nationality.
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. With regard to the complainant’s complaint of being discriminated against in her terms and conditions of employment, the claim was made that the complainant was unaware that the meals provided to her formed part of her remuneration. It was claimed that because the complainant’s tax and social welfare was computed based on the minimum wage of €8.52 per hour, she was at a detriment for building up social welfare entitlements. However, no evidence was adduced to support this, nor was any evidence adduced that would have shown that the complainant was treated differently in this regard than another employee of a different nationality. This part of the complainant’s case must therefore fail.
4.5. With regard to the complainant’s case of harassment, there was no dispute that her manager spoke to her about her personal hygiene twice. The manager, in her evidence, also confirmed that it was unusual for the complainant to have such problems, and that the complainant was a very good worker whose personal hygiene had never been found wanting before those two incidents. However, the manager strongly disputed ever making a gesture as if getting sick. It was this alleged gesture, which, the complainant’s representative stated, was offensive to a non-national on the basis that it would have implied the non-national could not understand what was said in the conversation. The complainant’s manager recalled the first conversation as “uncomfortable”, and stated that by the time the need had arisen to have a second conversation with the complainant about the same issue, a few days later, she was annoyed with the complainant. She stated that she went over the company policy on personal hygiene with the complainant. The complainant then said to her that she had had enough, and resigned. This resignation, however, was later withdrawn.
4.6. The complainant used the respondent’s internal grievance procedure to complain about her manager. However, the grievance could never be investigated as the complainant went on long-term sick leave soon afterwards due to back pain, and was not well enough to participate.
4.7. The Employment Equality Acts, in S. 14A(7), establish a subjective test for harassment, but nevertheless state that the unwanted conduct has to be related to the discriminatory grounds. The Acts say in S. 14A(7)(a) that:
In this section –
(i) References to harassment are to any form of unwanted conduct related to any of the discriminatory grounds, and
(ii) […]
being conduct which in either case has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person. [Emphasis added]
4.8. Conversations about poor personal hygiene are never easy for any manager to have to conduct, and can be embarrassing for both parties. Nevertheless, they can become necessary, especially in a service sector like the hospitality industry. I am not satisfied that such a disciplinary measure, awkward as it usually tends to be, can be considered harassment of an employee unless remarks are made, or other acts happen, which very expressly bring an employee’s gender, nationality, or other protected characteristic, into the conversation. In the case on hand, I find that there is not enough evidence to show that this was the case. Even if the disputed gesture happened, I am not satisfied that it is related to the complainant’s nationality. I do not see any connection at all to the complainant’s gender. Accordingly, I am not satisfied that a prima facie case of harassment within the meaning of the Acts has been made out by the complainant. Therefore this part of her complaint must also fail.
5. Decision
5.1. Based on all of the foregoing, I find, pursuant to S. 79(6) of the Acts, that Slieve Russell Hotel Property Ltd t/a Slieve Russell Hotel did not discriminate against Ms Liga Skuja on the grounds of gender and nationality, in her terms and conditions of employment, including its obligation to protect her from harassment, contrary to S. 8 of the Acts.
______________________
Stephen Bonnlander
Equality Officer
14 May 2014