FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 83, EMPLOYMENT EQUALITY ACTS, 1998 TO 2011 PARTIES : PARFUMS CHANEL LTD CHANEL LTD (REPRESENTED BY A& L GOODBODY SOLICITORS) - AND - ILENA CAPPELLO (REPRESENTED BY TIERNAN LOWEY, B.L., INSTRUCTED BY NAHOI & CO LAW FIRM SOLICITORS) DIVISION : Chairman: Mr Hayes Employer Member: Mr Murphy Worker Member: Mr McCarthy |
1. Appeal under Section 83 of the Employment Equality Acts, 1998 to 2011.
BACKGROUND:
2. The Worker appealed the Decision of the Equality Officer to the Labour Court in accordance with Section 83 of the Employment Equality Acts 1998 to 2011. A Labour Court hearing took place on 30th June, 2014. The following is the Determination of the Court:
DETERMINATION:
The Complainant claims that she was discriminated against by the Respondent on the grounds of gender, family status and marital status within the meaning of s 6(2)(a), (b) and (c) of the Employment Equality Acts 1998 – 2011 and contrary to sections 6 and 8 of those Acts. She specifically claims that she was discriminated against by the Respondent in relation to her conditions of employment and other discriminatory conduct.
She further alleges that she suffered harassment on the grounds of gender, family status and/or marital status within the meaning of section 14A(7) of the Act.
She further alleges that she was treated less favourably because she took action to oppose discrimination in terms of the provisions in the Act relating to victimisation s74(2) 27
The Complaints were filed with the Equality Tribunal on the 27thJuly 2011 against the first named respondent and on the 2ndAugust 2011 against the second named respondent.
The matter was heard by the Equality Officer on the 7thNovember 2013 and a decision issued on the 15thNovember 2013. The Equality Officer decided as follows
- 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.
The Complainant appealed against those decision to this Court on 20 December 2013. The case came on for hearing before the Court on the 12thMay 2014. At that hearing it emerged that the Complainant’s contract of employment is governed by English law. The matter was adjourned to allow the parties make further legal submissions on the jurisdiction of the Court to hear the complaint. Both parties made submissions to the Court arguing that the Court had jurisdiction under the Rome 1 Convention. With the consent of both sides the substantive matter came before the Court again on the 30thJune 2014.
Background
The Respondent operates a retail business within one of the large department stores in Dublin. The Complainant commenced working for the Respondent in November 2008 as a full time sales assistant. She subsequently commenced under graduate studies and in order to combine work and study demands on her time she changed to part- time weekend working around the time the course commenced.
In January 2011 the Complainant became pregnant. Earlier that month she felt fatigued and requested a change of shift from Saturday to Wednesday. The request was denied as the weekend is the store's busiest time.
On 27 January 2011 the Complainant was certified unfit for work from 27thto 31stJanuary 2011. She was diagnosed as suffering from severe nausea and vomiting. This certificate was issued by a doctor in the student support services in the university in which she was studying.
On the 16thJanuary her own GP issued her with a certificate stating that she was unfit for work as she was suffering from tonsillitis. She was again so certified by her G.P. for the period from 12thto 13thFebruary.
On the 2ndof February the Complainant’s Manager, Ms Linda Cooper, left a telephone voice message indicating she was trying to contact her. The Complainant returned the phone call. She records the phone call as follows: -
- Complainant:Hi Linda
Linda:Hi Ilenia
Complainant:Linda, I am still not well and I am not able to go to work this weekend because I am pregnant.
[The Complainant observes that Linda paused for a moment and then her tone of voice was serious and a bit aggressive]
Linda:So what do you want to do? Do you want to work for Chanel?
[The Complainant observes that she was shocked for a few seconds and was not expecting such a question. She did not know what to think]
Complainant:Of course I want to work for Chanel, when I recover. I will be back to work.
Linda:Are you going to keep the baby/
[the Complainant observes that Linda stressed the word “keep”]
Complainant: Of course
Linda:I mean you know Andrew for a short time; I just want to know if it is a planned or unplanned pregnancy.
Complainant:Unplanned
Linda:We will keep this conversation private. We won’t mention this conversation to any member of staff including Caoimhe.
[Caoimhe is the assistant manager]
She decided to examine the options open to her and requested a copy of her contract of employment. She was referred to the Respondent’s personnel Department in the UK. A month later she received the relevant documents. The grievance procedure set out in her contract of employment required her to raise any grievances with her direct manager in the first instance. However as her grievance involved her direct manager she decided to refer the complaint to the next level. Accordingly on the 15thApril the Complainant contacted a Ms Josiane El-Kabbany, Fashion Retail Director, in the UK and requested that she investigate the complaints regarding the treatment she received from Ms Linda Cooper in the course of the telephone conversation outlined above.
She received no response tothat email and followed the matter up again on the 30thMay 2011.
The Respondent states that it did not receive the note of the 15thApril and was not aware of the complaint until it received the email of the 30thMay 2011.
The Respondent advised the Complainant on the 6thJunethat it was referring the matterto a Mr Paul Thomas for investigation. The Complainant contacted him on the 10thJune 2011 attaching her complaint as requesting that it be investigated as soon as possible.
Mr Thomas contacted the Complainant on the 13thJune advising her that he had been appointed to investigate the complaint. He proposed meeting the Complainant to progress the matter.
The Complainant however stated that, on medical advice, she was not in a fit state to engage in that process at that time.
In addition the Complainant was not willing to engage with the investigation unless she was represented at all relevant meetings by her solicitor. The Respondent advised her that it did not permit legal representation in such internal investigations and suggested that she be accompanied by a fellow staff member instead. This was not acceptable to the Complainant.
Finally on the 25thJune 2012 the Respondent wrote to the Complainant's solicitor proposing that she be accompanied to the meeting by a friend of her choosing.
There is a dispute between the parties as to whether the Respondent’s solicitor responded to this letter.
When the matter came before the Court the Complainant, had changed solicitors. She stated however that she had been assured by her former solicitors that they had responded to that letter.
The Respondent states that no response was received to that letter.
The Respondent wrote again on 13 November 2012 reiterating the offer and seeking a response.
In the meantime the Complainant had referred a complaint to the Equality Tribunal against the two named respondents on the 27th July 2011 and the 2nd August respectively.
After the Equality Tribunal had issued its decision in the case the Complainant, by way of correspondence dated 13 January 2014, replied to the Respondent's email of the 25th June 2012.In that response she indicating her willingness to participate in the grievance procedure.
The Respondent states that as the Complainant had indicated that she intended leaving her employment on the 25thMarch 2014 there was no point in completing the internal investigation procedure at that point.
The Law
Burden of Proof
Section 85(a) of the Act states
“85A.—(1)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 section effectively transposes the provisions of Article 3(1) of Council Directive 97/80 on the Burden of Proof in Cases of Discrimination Based on Sex into Irish law.
It sets out the procedural rules to be followed in applying the evidential burden in discrimination cases and is regulated by the European Communities (Burden of Proof in Gender Discrimination Cases) Regulations 2001Article 3(1) of the Regulations, which transposed Article 4 of Council Directive 97/80/EC of 15th December 1997, provides as follows
"3(1) Where in any proceedings facts are established by or on behalf of a person from which it may be presumed that there has been direct or indirect discrimination in relation to him or her, it shall be for the other party concerned to prove the contrary"
In Southern Health Board v Mitchell AEE/99/8, the Court considered the application of Article 4 of the Directive and concluded as follows:
"[A] complainant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination.
It is only if these primary facts are established to the satisfaction of the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there was no infringement of the principle of equal treatment."
Pregnancy
The Law affords special protection to pregnant women. The Court set out the position in the following terms in Winston’s Jewellers v Mason EE032/2033. It said
- Under the European Union (Burden of Proof in Gender Discrimination Cases) Regulations 2001, oncean employee has shown that she has been dismissed or discriminated against while pregnant the onus switches to the employer to show that such dismissal or discrimination was justified.
Complaint 6(2) of the Act states
6.—(1)For the purposes of thisAct, discrimination shall be taken to occur where, on any of the grounds insubsection (2)(in thisActreferred to as “the discriminatory grounds”), one person is treated less favourably than another is, has been or would be treated.
(2)As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of thisAct) are—
- (a)that one is a woman and the other is a man (in thisActreferred to as “the gender ground”),
- (b)that they are of different marital status (in thisActreferred to as “the marital status ground”),
- (c)that one has family status and the other does not (in thisActreferred to as “the family status ground”),
8.—(1)In relation to—
- (a)access to employment,
- (b)conditions of employment,
- (c)training or experience for or in relation to employment,
- (d)promotion or re-grading, or
- (e)classification of posts,
- an employer shall not discriminate against an employee or prospective employee and a provider of agency work shall not discriminate against an agency worker.
Section 8(6) of the Act states
(6)Without prejudice to the generality ofsubsection (1), an employer shall be taken to discriminate against an employee or prospective employee in relation to conditions of employment if, on any of the discriminatory grounds, the employer does not offer or afford to that employee or prospective employee or to a class of persons of whom he or she is one—
- (a)the same terms of employment (other than remuneration and pension rights),
- (b)the same working conditions, and
- (c)the same treatment in relation to overtime, shift work, short time, transfers, lay-offs, redundancies, dismissals and disciplinary measures,
- as the employer offers or affords to another person or class of persons, where the circumstances in which both such persons or classes are or would be employed are not materially different.
(7)Without prejudice to the generality ofsubsection (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.
(8)Without prejudice to the generality ofsubsection (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.
Harassment
Section 14 of the Act defines harassment as
.—(1)For the purposes of thisAct, where—
- (a)an employee (in thissectionreferred to as ‘the victim’) is harassed or sexually harassed either at a place where the employee is employed (in thissectionreferred to as ‘the workplace’) or otherwise in the course of his or her employment by a person who is—
- (i)employed at that place or by the same employer,
- (ii)the victim’s employer, or
- (iii)a client, customer or other business contact of the victim’s employer and the circumstances of the harassment are such that the employer ought reasonably to have taken steps to prevent it,
- or
- (b)without prejudice to the generality ofparagraph (a)—
- (i)such harassment has occurred, and
- (ii)either—
1. the victim is treated differently in the workplace or otherwise in the course of his or her employment by reason of rejecting or accepting the harassment, or
2. it could reasonably be anticipated that he or she would be so treated,
- the harassment or sexual harassment constitutes discrimination by the victim’s employer in relation to the victim’s conditions of employment.
(2)If harassment or sexual harassment of the victim by a person other than his or her employer would, but for thissubsection, be regarded as discrimination by the employer undersubsection (1), it is a defence for the employer to prove that the employer took such steps as are reasonably practicable—
- (a)in a case wheresubsection (1)(a)applies (whether or notsubsection (1)(b)also applies), to prevent the person from harassing or sexually harassing the victim or any class of persons which includes the victim, and
- (b)in a case wheresubsection (1)(b)applies, to prevent the victim from being treated differently in the workplace or otherwise in the course of the victim’s employment and, if and so far as any such treatment has occurred, to reverse its effects.
(3)A person’s rejection of, or submission to, harassment or sexual harassment may not be used by an employer as a basis for a decision affecting that person.
(4)The reference insubsection (1)(a)(iii)to a client, customer or other business contact of the victim’s employer includes a reference to any other person with whom the employer might reasonably expect the victim to come into contact in the workplace or otherwise in the course of his or her employment.
(5)In thissection‘employee’ includes an individual who is— and accordingly any reference to the individual’s employer includes a reference to the employment agency providing the service or, as the case may be, the person offering or providing the course or facility .
- (a)seeking or using any service provided by an employment agency, and
(b)participating in any course or facility referred to inparagraphs (a) to (c) of section 12(1),
- (a)seeking or using any service provided by an employment agency, and
(6)Wheresubsection (5)applies in relation to a victim,subsection (1)shall have effect as if for ‘in relation to the victim’s conditions of employment’ there were substituted ‘contrary tosection 11’ or, as the case may be,section 12.
(7)
- (a)In thissection—
- (i)references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds, and
- (ii)references to sexual harassment are to any form of unwanted verbal, non-verbal or physical conduct of a sexual nature,
- 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.
- (b)Without prejudice to the generality ofparagraph (a), such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material.”.
Victimisation
Victimisation is defined in the Act in the following terms
(2)For the purposes of thisPart, victimisation occurs where the dismissal or other penalisation of the complainant was solely or mainly occasioned by the complainant having, in good faith—
- (a)sought redress under thisActor any enactment repealed by thisActfor discrimination or for a failure to comply with an equal remuneration term or an equality clause (or a similar term or clause under any such repealed enactment),
- (b)opposed by lawful means an act which is unlawful under thisActor which was unlawful under any such repealed enactment,
- (c)given evidence in any criminal or other proceedings under thisActor any such repealed enactment, or
- (d)given notice of an intention to do anything withinparagraphs (a) to (c).
Issues
Section 6(2) of the Act
The Complainant states that Respondent discriminated against her contrary to section 6(2) (a), (b) and (c) of the Act on the grounds of gender, marital status and family status.
In the course of a telephone conversation on the 2ndFebruary 2011 with , her manager, Ms Linda Cooper, regarding her availability for work the Complainant told the Respondent that she was pregnant.
The details of the conversation that took place are outlined above.
The contents of the conversation are largely accepted as an accurate record of what transpired. How it is to be interpreted is a matter of dispute between the parties.
Ms Cooper in evidence said that she phoned the Complainant to determine if she would be available for work the following weekend. She said that the Complainant told her she was pregnant. She said that she asked the Complainant if it was planned or unplanned and how she felt about being pregnant. She denied asking her if she was going to “keep” the baby. She said that such a conversation would be out of character for her.
She said that the Complainant had been certified unfit for work and she was ringing enquiring if she would be available to work the following weekend. She was surprised when she was told the Complainant was pregnant. She wanted to be supportive of the Complainant. In order to do that she needed to know how the Complainant herself felt about her pregnancy. She said that this is the context in which the conversation developed.
The Complainant states that she recalls very clearly the details of the conversation. She states that she wrote sketch notes of the conversation that day and wrote them up fully some time later. She states that she had accurately recording what was said. She said she would never forget that conversation.
The Complainant states that Ms Cooper asked her to cover up matters and particularly not to disclose the information to the assistant manager. She said that this made her feel that pregnant workers were not welcome in the shop and that her job was in jeopardy.
Ms Cooper stated that she said that she would not tell anyone else of the conversation she had had with the Complainant as news of the pregnancy was a matter for the Complainant to pass on at a time of her choosing to whomever she chose to tell. It was not a matter that she, Mr Cooper, should pass on. She stated that that is the import of that part of the conversation.
Discussion
Having reviewed the details of the conversation and the accounts presented by both sides the Court finds no evidence of discrimination on the gender, marital status or family status grounds.
The Act defines discrimination in the following terms
(6)Without prejudice to the generality ofsubsection (1), an employer shall be taken to discriminate against an employee or prospective employee in relation to conditions of employment if, on any of the discriminatory grounds, the employer does not offer or afford to that employee or prospective employee or to a class of persons of whom he or she is one—
- (a)the same terms of employment (other than remuneration and pension rights),
- (b)the same working conditions, and
- (c)the same treatment in relation to overtime, shift work, short time, transfers, lay-offs, redundancies, dismissals and disciplinary measures,
- as the employer offers or affords to another person or class of persons, where the circumstances in which both such persons or classes are or would be employed are not materially different.
The Court finds that, given the significance of the event in her life, the Complainant would have reason to recall the conversation in greater detail than the Respondent. Ms Cooper in evidence conceded that her recollection of the conversation was not as clear as the Complainant’s. She stated that she was clear on the interpretations placed on portions of it.
She was clear that she at no point indicated that the Complainant’s job was in jeopardy or that she was not welcome to return to work. She said that she was instead seeking to establish when the Complainant would be in a position to resume work so that she could put her rosters in order and ensure that the shop was covered for the busy weekend trading period.
The Court has considered the evidence of both sides on this point. The Court finds Ms Cooper’s evidence plausible and consistent with the exchange that took place. The Court is not persuaded that the conversation as it developed was designed to create a hostile atmosphere for the Complainant or to try to discourage her from returning to work. Instead the Court accepts Ms Cooper’s statement that she was trying to be supportive on the one hand but also to establish what the Complainant’s intentions were regarding a return to work.
As regards the statement that they should keep the conversation private the Court accepts Ms Cooper’s statement that it was said out of respect for the Complainant’s right to manage the timing of any announcement regarding her pregnancy herself.
The Complainant refers to Ms Cooper’s question whether the pregnancy was planned or unplanned as a reference to her marital status and that of the father of the child. Ms Cooper states that she was addressing the Complainant regarding how comfortable she was about the pregnancy and not addressing her marital status. She said that she had a very good relationship with the Complainant and that they enjoyed each other’s company. She states that she was talking to the Complainant as both a friend and as an employer and that the conversation reflects that complexity. She said that not everyone is necessarily happy when they are told they are pregnant. As the conversation developed she was trying to establish how the Complainant felt and was not passing comment or forming any judgement on the matter.
The Complainant told the Court that she had a good working and personal relationship with Ms Cooper. She said that they had got on well and that while they were not friends they were friendly with each other. She said that the conversation crossed a line and that it was addressing her marital status and was inappropriate and unlawful.
The Court has given careful consideration to this matter. The Court finds that the conversation Ms Cooper had with the Complainant did not in any way compromise her terms and conditions of employment or her employment itself because of her pregnancy or of her family or marital status. It may or may not have been indiscreet or improper, but it was not unlawful. It was not conducted with a view to compromising the Complainant’s employment because of her pregnancy or because of her family or marital status. The conversation simply does not support the conclusion contended for by the Complainant.
Finally the Complainant states that Ms Cooper asked her if she was “keeping” the baby. Ms Cooper denies that she did so. The Court, for the reason given above, prefers the Complainant’s evidence on this point. However the Court again finds that this conversation did not adversely impact on the Complainant’s employment. No evidence of such an adverse impact has been presented to the Court.
Contact re Medical Certificates
The Complainant states that Ms Cooper subsequently telephoned her and queried. her medical certificates She argues that this amounts to an intrusion into her private life and to unfavourable treatment within the meaning of the Act.
Ms Cooper states that there were a number of certificates in close succession identifying different illnesses causing absence from work. She said that she was simply following up on those certificates to establish precisely what was happening. She said that this did not amount to an intrusion into the Complainant’s private life or to unfavourable treatment as claimed by the Complainant.
The Court has examined the detail of this evidence. The Court finds nothing unusual in an employer phoning a worker to clarify details of a medical certificate. The Complainant has identified no element in the conversations that took place that could be interpreted as adverse treatment. The Court therefore concludes that the Respondent’s actions in this regard were reasonable and proportionate and do not amount to adverse treatment.
The Complaint and Investigation
The Complainant states that there was a delay in providing her with her contract of employment. The Respondent states that this was provided to her when she commenced employment and that it was copied to her from London when requested. It stated that contracts are filed in storage and that retrieving them takes a short time. It argues that it acted quickly when it received a request for a copy of the contact from the Complainant.
The Complainant filed a grievance on the 15thApril 2011. The Respondent denies receiving that complaint. The Complainant followed up with a further note on the 30thMay 2011 again requesting that her complaint be investigated. The Respondent replied on the 6thJune. The Complainant submitted details to Mr Thomas on the 10thJune and he replied on the 13thJune. He sought to arrange a meeting to progress the matter but on medical advise the Complainant declined to meet at that time. The Complainant subsequently sought to be accompanied by her solicitor at any subsequent meeting. The Company refused this request stating that its procedures did not provide for such representation.
An exchange of correspondence followed. However no agreement was reached regarding legal representation at meetings to progress the grievance.
After the birth of the Complainant’s child she sought carers leave from the Company. This was approved and the Complainant did not return to work in the intervening period. She finally tendered her resignation from the Company with effect from the 25thMarch 2014 and no investigation was conducted.
The Court has considered the exchange of correspondence that took place regarding the filing and management of the Complainant’s grievance. The Court finds that the Respondent became aware of the Complaint on the 30thMay 2011 and acted with reasonable speed to initiate an investigation. The Court finds that the Respondent was and remained willing and anxious to conduct an investigation into the grievances raised but was frustrated in doing so by the Complainant herself. The Court finds that the Complainant was either not medically fit to participate in the investigation or when fit refused to do so unless she was legally represented in that process. The Court finds that the Complainant had no right to such legal representation and that the Respondent made a number of efforts to accommodate the Complainant but these were refused by her.
Accordingly the Court finds that the delay in investigating the Complainant’s grievance was occasioned by her own stance and behaviour.
Victimisation
The Complainant presented no evidence of victimisation within the meaning of section 74(2) of the Act to the Court. The Court finds that the Respondent engaged reasonably with the Complainant and took no action that could amount to victimisation against her.
Determination
Having considered the evidence before it the Court determines that
The Respondent did not discriminate against the Complainant on the grounds of gender, family status or marital status within the meaning of s6(2) (a), (b) and (c) of the Employment Equality Acts 1998 – 2011 and contrary to sections 6 and 8 of those acts.
The Respondent did not harass the Complainant on the grounds of gender, family status or marital status within the meaning of section 14A(7) of the Act.
That the Respondent did not discriminate against or victimise the Complainant contrary to section 74(2) of the Act.
The appeal is not allowed.
The Court so determines.
Signed on behalf of the Labour Court
Brendan Hayes
3rd November 2014______________________
SCDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Sharon Cahill, Court Secretary.