EQUALITY OFFICER'S DECISION NO: DEC-E/2015/003
PARTIES
Ms. Melanie O'Grady
(Represented by O'Connor O'Dea Solicitors)
Vs
Kellsydan Ltd t/a McDonalds
(Represented by IBEC)
FILE NO: EE/ EE/2012/311 & EE/2013/143
Date of issue: 26th of January , 2015
1. Dispute
1.1 This dispute involves claims by Ms. Melanie O’Grady against Kellsydan Ltd t/a McDonalds that she was discriminated against on grounds of grounds of race, gender and family status in terms of section 6 and contrary to section 8 of the Employment Equality Acts, 1998 and 2008 in relation to promotion training and conditions of employment. There is also a complaint of discriminatory dismissal.
2. Background
2.1 The complainant referred complaints under the Employment Equality Acts 1998 to 2008 to the Equality Tribunal on the 5th of June, 2012 and 22nd of March 2013 alleging that the respondent had discriminated against her on grounds of race, gender and family status when she was not permitted to attend training courses and so was not promoted while other newer employees were sent on courses and then promoted. The complainant also alleges that she went on part time hours following the birth of her child but that she was refused a return to full time hours when she requested same despite others being given more hours at that time. The complainant had also submitted a claim of discriminatory dismissal but this was not pursued at the Tribunal hearing. The dismissal was however pursued by the complainant at a later date, at a hearing before the Employment Appeals Tribunal which took place on 4th of November, 2014 and a decision (ref: UD338/2013) issued in this regard.
2.3 In accordance with his powers under section 75 of the Employment Equality Acts, 1998-2008 the Director delegated the cases on 16th of October, 2014 to me, Orla Jones, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of those Acts This is the date I commenced my investigation. Written submissions were received from both parties. As required by Section 79(1) of the Acts and as part of my investigation I proceeded to a Hearing on the 29th of October, 2014.
3. Summary of complainant’s case
3.1 The complainant submits that she was employed in McDonalds Restaurant in the Crescent Shopping Centre from 24th of June 2004 where she progressed to Trainee Manager within a few months.
3.2 It is submitted that it was 5 years before the complainant was sent on an Area Managers course, the complainant made a number of requests to attend training courses between 2004 and 2009 but was not facilitated.
3.3 It is submitted that a number of newer employees were sent on training courses when the complainant was not. It is submitted that these employees were non Irish and that this amounts to discrimination on grounds of race.
3.4 The complainant submits that promotions were dependant upon attending relevant training courses and that newer employees were promoted following their attendance at courses.
3.5 The complainant was not given a pay rise when she was promoted from Trainee Manager to Area Manager and this was due to her race.
3.6 The complainant went on maternity leave in October 2010 and on her return to work after her maternity leave in April 2011 requested and was granted part time hours. The complainant requested a return to full time hours in April, 2012 but was refused.
3.7 The complainant submits that other managers who requested a move from full time to part time hours following maternity leave were refused yet the complainant was refused a return to full time hours.
3. 8 It is submitted that others who became Trainee Managers after the complainant, have since progressed to Shift Managers while the complainant has not.
3.9 It is submitted that the complainant’s manager told her that she was not strong enough to become a Shift Manager.
4. Summary of Respondent’s case
4.1 It is submitted that the complainant was employed in McDonalds from June 2004 and that she progressed to the position of Area Manager. It is submitted that the respondent took over the franchise at this location in December, 2008. At that time the complainant was a Trainee Manager.
4.2 The complainant was sent on an Area Manager course by the respondent in October 2009, some 10 months after it took over the franchise.
4.3 Area Manager in the respondent organisation has responsibility for a particular area of the restaurant eg. Customer Service
4.4 The complainant was not given a pay rise when she was promoted from Trainee Manager to Area Manager and this was due to the fact that she was already on the maximum rate of pay for an Area Manager.
4.5 A number of other employees were sent on an Area Manager course in 2012, a course which the complainant had already completed in October 2009.
4.6 The complainant did ask to go on a Shift manager’s course but was advised by her Store Manager that she was not strong enough for the position of Shift manager.
4.7 The complainant was aware that that there were deficiencies in her performance and was advised of these.
4.8 The complainant went on maternity leave on 18th of October, 2010 until 18th of April, 2011. Prior to her return from maternity leave the complainant submitted a request to move from full time to part time hours, 20 hours per week. The complainant was facilitated by the respondent and issued with a new part time hour’s contract.
4.9 On 17th of April, 2012 the complainant requested to return to full time hours. A letter indicating that she could not be granted a return to full time hours issued to the complainant on 27th of April, 2012. This letter also indicated that the position would be reviewed again in 6 months time.
4.10 On 23rd of May 2012 the complainant submitted a complaint similar to the one she submitted to the Tribunal.
4.11 On 12th of June 2012 the complainant was offered additional hours in another store which she declined.
4.12 On 15th of June, 2012 the complainant advised Ms. H that she had been for a job interview and had given Ms. H’s name as a referee she advised Ms. H that she was leaving as she “needed a change”. Later that day Ms. H received a call from Topaz requesting a reference for the complainant.
4.13 The complainant’s Store Manager, Ms. C phoned the complainant on the same day and told her she was a valued employee with 8 years experience.
4.14 The respondent scheduled a meeting with the complainant and the owner Mr. D for 25th of June, 2012. In this meeting and a further meeting the complainant was again offered the additional hours in the Cruises Street store.
4.15 The complainant resigned on 31st of October, 2012.
5. Conclusions of the Equality Officer
5.1 The issue for decision by me now is, whether or not, the respondent discriminated against the complainant, on grounds of race, gender and family status in terms of Section 6 and contrary to Section 8 of the Employment Equality Acts, 1998 to 2008, in relation to her treatment in respect of promotion, training and conditions of employment. 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 at the Hearing.
5.2 Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination. If she succeeds in doing so, then, and only then, is it for the respondent to prove the contrary. The Labour Court elaborated on the interpretation of section 85A in Melbury v. Valpeters EDA/0917 where it stated that section 85A: "places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule".
5.3 Section 6(1) of the Employment Equality Acts, 1998 to 2008 provides that discrimination shall be taken to occur where “a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2)…..” Sections 6(2)(a),(c) and (h) of the Acts define the discriminatory grounds of gender, race and family status as follows – “as between any 2 persons, .....
(a) that one is a woman and the other is a man,..
(c) that one has a family and the other does not ,...
(h) that they are of different race, colour, nationality or ethnic or national origins…“
5.4 Refusal of training courses
5.4.1 The complainant advised the hearing that shortly after the commencement of her employment she had been promoted to Trainee Manager but stated that it was 5 years before she was sent on an Area Manager course. The respondent advised the hearing that the respondent organisation had been taken over by its current management in December 2008 and stated that the complainant was sent on an Area Manager course as soon as one became available in October 2009, which was 10 months after the respondent had taken over the franchise. The respondent advised the hearing that training courses arise periodically and are not run all the time with the result that staff are sent on the relevant courses as they arise.
5.4.2 The complainant advised the hearing that other newer employees had been sent on training courses before the complainant, during the period in question, between December 2008 and October 2009, while the complainant was not sent on any course until October 2009. The complainant went on to state that these employees were non Irish and had started their employment after her. The respondent conceded that newer employees had during the period in question been sent on a Trainee Managers course which arose before the Area Managers course. The complainant had already completed the Trainee Managers course before the respondent took over the franchise. The complainant conceded that she had already completed the Trainee manager training course.
5.4.3 The complainant advised the hearing that other newer employees had been sent on training courses while the complainant had been refused thus affecting the complainant’s chances of promotion. The complainant stated that these newer employees were non Irish and that this amounts to discrimination The complainant when questioned as to the names of these employees named Ms. M and Ms. L, whom she stated were promoted and sent on the Area Manager training course. It emerged at the hearing that the course in question took place in 2012 and that the complainant had already completed this course in October 2009.
5.4.4 The respondent stated that there was no Area Manager training course held during the period in question, following the respondent’s taking over of the franchise in December 2008 and so the complainant could not have been sent prior to that. The respondent advised the hearing that he complainant was sent on the Area manager training course as soon as it arose following the respondents taking over of the franchise. The respondent went on to state that had a relevant training course taken place at an earlier date the complainant would have been sent on the course. I am satisfied from the totality of the evidence adduced that the complainant was not discriminated against on grounds of race gender or family status in relation to these matters.
5.4.5 The complainant advised the hearing that following her promotion to Area Manager the next position open to her for promotion purposes was that of Shift Manager. The complainant advised the hearing that she requested to be sent on a Shift Manager training course on a number of occasions but was refused. She advised the hearing that her manager Ms. C had told her that she was not strong enough to go on to the position of Shift Manager. The complainant advised the hearing that the crew did not listen to her and that she felt this was due to the fact that she was not being sent on training courses. The respondent advised the hearing that it had formed the view that the complainant was not strong enough to go on to the position of Shift Manager and stated that she had been advised of this on a number of occasions during her performance appraisals. The respondent went on to outline its Performance Review procedure which takes place periodically. The respondent stated that the complainant’s Performance Reviews indicated that the complainant needed improvement in some areas. Witness for the respondent Ms. C who was the complainant’s Store Manager advised the hearing that a Development Plan had been devised for the complainant arising from issues with her performance and outlining areas for improvement. Ms. C went on to state that the complainant had not shown any interest in adhering to this Development Plan and had actually told Ms. C that she had lost her Development Plan when Ms. C sought to refer to it.
5.4.6 An issue arose at the hearing in relation to a Performance Review carried out with the complainant in September 2012 which had gone missing from the respondent’s office. This review was not signed off and later went missing from the office. The respondent advised the hearing that the Review had to be re-done with another manager in October 2012 once it became apparent that the original unfinished one could not be found. The complainant at the hearing argued that she had not scored as well in the repeat Review as she had done the first time around. She advised the hearing that she had scored mostly 3’s in the September Review but had scored mostly 2’s in the October Review. The respondent went on to state that it could not say whether or not this was the case the second review was done with a different manager and so may have differed from the earlier unfinished one which the respondent did not have as it went missing from the office. The complainant advised the hearing that she knew she had scored better on the earlier review as she herself had a copy of it. The respondent advised the hearing that the complainant had never indicated that she had a copy of the original review and had never disclosed to them or offered them the review even though they had told her that the original was missing and that she would have to have a repeat review for this reason. The complainant submitted a copy of the September Review at the hearing. The complainant scored 3 out of 4 in the Personal attributes section of this review and 2 out of 4 in the Operations Rating which relates to feedback in relation to business objectives. The overall comments on this review were good but indicated that some improvement was required.
5.4.7 The complainant has submitted that the respondent’s failure to send her on training courses amounts to discrimination on grounds of race gender and family status. In support of this the complainant has advised the hearing that the majority of the Managers in the branch where she worked were Non Irish apart from the complainant and the Store Manager Ms. C who was also Irish. It appears from the evidence adduced that the staff compliment of the branch in question was made up of a large number of non Irish workers but it is submitted that this is not unusual in the respondents business. Given that a large number of staff who seek and are employed in the respondent organisation are non Irish it is not surprising then that a number of staff who progress to the level of Managers are also non Irish and does not in itself given rise to any inference of discrimination. In addition, it is clear from the totality of the evidence adduced here that the complainant’s failure to progress to the position of Shift Manager and to attend the training course required for such promotion was not due to her race. Accordingly I am satisfied that the complainant was not discriminated against on grounds of race in relation to this matter.
5.4.8 Claims re gender and family status
The complainant at the hearing did not adduce any evidence to substantiate the claims that her failure to progress to the position of Shift Manager and to attend the training course required for such promotion was due to her gender or due to her family status. Accordingly I am satisfied that the complainant was not discriminated against on grounds of gender or family status in relation to this matter
5.4.9 Failure to receive a pay rise
The complainant advised the hearing that she had not been awarded a pay rise since becoming an Area Manager in October 2009 even though other employees received pay rises after completion of courses. The respondent advised the hearing that the complainant did not receive a pay rise at the time as she had already reached the pay threshold set out by the company. The hourly rate for an Area Manager was €10 per hour which the complainant was already being paid prior to completing the course. The complainant did not dispute this. The respondent has also submitted that the complainant was well aware of the pay scale as it had been put in a prominent place within the staff area of the restaurant for all staff to be aware of. The complainant advised the hearing that another staff member who was ‘non-Irish’ had got a pay rise because she threatened to leave the organization but had said she would stay if she got a pay rise. This staff member was then promoted to Trainee Manager and received a pay rise. The respondent advised the hearing that the staff member in question was promoted to Crew Trainer and did receive a pay rise commensurate with this position. The respondent advised the hearing that it did not want to lose the staff member in question who was considered a good performer. The staff member in question was promoted following the training and received a pay rise as indicated on the pay scale for that position. The respondent stated that the position of Crew Trainer was equivalent to Trainee manager and a level below that of Area Manager which is the complainant’s title. The respondent stated that it is however a fact that the complainant was not promoted at the same rate as her colleagues as she did not display the attributes required.
5.4.10 The complainant also advised the hearing that this staff member had in 2012 refused to go on a Shift manager training course as she would not get any pay rise for completing the course so she did not want to go. Thus it would seem from the complainant’s own evidence on this matter, that staff members, whether Irish or non-Irish, are not automatically entitled to a pay rise on completion of training courses. I am satisfied from the totality of the evidence adduced in relation to this matter that the complainant was not discriminated against on grounds of her race in relation to this matter.
5.5 Failure to be rostered for opening or closing the shop
5.5.1 The complainant submits that she was not rostered to open or close the shop and therefore did not have any experience in opens or closes. The complainant has submitted that this was held against her when it came to her suitability for promotion to Shift Manager. The complainant advised the hearing that she did not have any experience in opening or closing the shop but stated that she had suggested that she be rostered with another manager who was experienced in opening and closing the store in order to gain experience in that area. The complainant advised the hearing that the respondent did not agree to this.
5.5.2 The respondent advised the hearing that the complainant did not have the relevant experience to open and close the restaurant as she had never worked at opening or closing times during her time as Crew member or as Trainee Manager due to the fact that she had from the beginning of her employment requested day shifts. It emerged at the hearing that the complainant had initially requested day shifts as she was unable to drive and was dependent on public transport to travel to and from work. She had requested and been granted day shifts only in accordance with her request. The respondent advised the hearing that it had in accordance with the complainant’s wishes scheduled her on days shifts with no early mornings or late nights and stated that the complainant had not during her time as crew member or as trainee manager gained experience in opening or closing the shop.
5.5.3 The complainant advised the hearing that this had been the case for much of her employment but stated that following her request to return to full time employment she had indicated that she could now be flexible and would be available for all shifts including late nights and early mornings as she was now driving her own car and so was no longer dependant on public transport. The complainant advised the hearing that she had told her manager of her increased availability but that she was still not rostered to work open and closes even though she was now available and willing to do so. The complainant advised the hearing that she was however rostered to work some opens and closes in July 2012.
5.5.4 The complainant submitted that she was not promoted to the position of Shift manager and that one of the reasons for this was that she was not able to open or close the shop herself. The complainant had requested that she be rostered with another manager to gain experience of opening and closing the shop. The respondent advised the hearing that it could not justify rostering and paying two managers at the same time to do work which would normally be done by one manager. The complainant has cited the failure to roster her for opens or closes as evidence of discrimination and submits that this was also a factor in the respondents decision not to restore her to full time hours and not to promote her to Shift manager. The complainant at the hearing seemed to be attempting to link her failure to be rostered for opens or closes to the fact that she is a mother of a young child and her employer may have thought she would be less flexible in relation to her availability for work as a result of this. However other than a statement to that effect the complainant raised no evidence to substantiate this aspect of the claim. Accordingly I am satisfied from the totality of the evidence adduced in relation to this matter that the respondent’s failure to roster the complainant to work opens and/or closes does not amount to discrimination on grounds of gender, family status or race.
5.6 Request to return to full time hours
5.6.1 The complainant has submitted that she was discriminated against by the respondent on grounds of race, gender and family status when she sought and was refused a return to full time hours.
5.6.2 The complainant advised the hearing that following her return from maternity leave in October 2010 she requested to move from full time to part time hours i.e. 20 hours per week. The complainant stated that she was facilitated by the respondent in relation to her request and was issued with a new 20 hour contract.
5.6.3 The complaint advised the hearing that she had in December 2011 mentioned to her Store Manager Ms. C that she would like to return to full time hours. The complainant stated that Ms. C advised her that she would speak to the General Manager Ms. G about the request. The complainant stated that she had heard nothing back form Ms. C about her request and when she followed up on it, Ms. C told her that she had forgotten to mention it to Ms. G. The complainant advised the hearing that she had suggested to Ms. C in March 2012 that she herself would speak to Ms. G regarding her request to return to full time hours. Ms. C told the complainant that was fine and that she had no objection to her speaking to Ms. G herself on the matter.
5.6.4 The complainant spoke to Ms. G about this matter in April 2012 who told her that she would check it out and revert back to the complainant. The complainant was later advised to put her request in writing outlining her availability. Following this a letter issued to the complainant on 27th of April, 2012 indicating that she could not be granted a return to full time hours due to current business requirements. This letter also indicated that the position would be reviewed again in 6 months time.
5.6.5 The complainant advised the hearing that a number of the respondent’s staff were pregnant in December 2011 (5 of them 1 of whom was Irish) and that they were told that they would have to return to the same contracts following their maternity leave and that requests for changes to contracts would not be considered. The respondent conceded that this had happened and advised the hearing that it had a large number of staff due to go on maternity leave in or around the same time and that it had issued a direction that no changes could be made to contracted hours as it would not be possible to facilitate everyone and would cause great problems if all of these staff were seeking to change their contracted working hours. The complainant submits that this is further evidence of discrimination against her as the respondent was refusing to reduce other contracts while at the same time refusing to increase the complainant’s contract. The complainant has not provided any evidence to link this aspect of her claim to her race, gender or family status. I am satisfied that the respondents refusal to allow other employees to change their contracts either by increasing or decreasing their contracted hours does not amount to evidence of discrimination against the complainant on any of the grounds named. Accordingly I am satisfied that the complainant was not discriminated against on grounds of race, gender or family status in relation to this matter.
5.6.6 The complainant submitted a complaint to the respondent on 23rd of May 2012. The complainant advised the hearing that the respondents failure to permit her to return to full time hours amounts to discrimination on grounds of race, gender and family status. In support of her claim of discrimination on grounds of race the complainant advised the hearing that the respondent organisation had during the time in question taken on 6 new staff at entry level or crew members, 3 of whom were Irish and 3 non Irish. The complainant submits that the respondent did have additional hours as it gave these hours to new staff members but not to the complainant. The respondent at the hearing conceded that it had taken on new staff both Irish and non-Irish at crew level and stated that these were not comparable to the complainant as she was an Area Manager. In addition the respondent added that a number of those recruited they were of the same race as the complainant so it is not clear how the complainant is linking this to her race, gender or family status.
5.5.7 The complainant advised the hearing that the respondents refusal to allow her to return to full time hours amounts to discrimination on grounds of race, gender and/or family status. The respondent advised the hearing that the complainant was offered additional hours in another store, this offer was made by the General Manager, Ms. G on 12th of June, 2012. The respondent advised the hearing that the complainant had declined this offer. The complainant conceded that she did decline this offer as it would mean she would have to pay for parking and could also mean working late. The complainant advised the hearing that it would not be worth her while accepting the hours in the Cruises Street store as it would in effect only give her 1 extra hour as she would be moving from currently working 24 hours to 25 hours. The respondent disputed this and stated that her contract at the time was a 20 hour contract but that she gets additional hours when available. The complainant conceded that her contract was a 20 hour one at the time. The position she was being offered in Cruises Street was a 25 hour contract and again getting additional hours as and when available. The respondent stated that it would not intend or expect the complainant to accept an offer of 1 additional hour in another store.
5.5.8 The respondent advised the hearing that the complainant had a discussion with Ms. H on 15th of June 2012 advising Ms. H that she had been for a job interview as she needed a change and had given Ms. H as a referee. Later that day Ms. H received a call from Topaz requesting a reference which she provided.
5.5.9 Upon hearing of the complainant’s threatened resignation the respondent General Manager, Ms. G and the Owner, Mr. D arranged to meet with the complainant on 25th of June where the complainant was again offered a transfer to the Cruises Street Store with increased hours or the option of doing an extra shift in the Cruses Street store while continuing to work her current contract in the Crescent. The respondent advised the hearing that complainant considered these options before ultimately rejecting them. A further meeting was held with the complainant on 30th of October, 2012 and the complainant resigned on 31st of October, 2012.
5.5.10 It is clear from the evidence adduced here that the complainant following her return from maternity leave in April, 2011 sought to move to part time hours. The respondent granted the complainant’s request and she was issued with a new contract. The complainant, in December 2011 decided that she wished to return to full time hours and sought a return to same. The respondent indicated that it could not facilitate the complainant with a return to full time hours at this time due to business constraints. The respondent then offered the complainant additional hours in another store which the complainant refused. In addition, the complainant when questioned at the hearing as to whether she was aware of any staff who had requested and been granted a move from part time to full time hours, during the period in question, replied that she had not. The complainant has submitted that the respondent’s failure to restore her to full time hours following her request, amounts to discrimination on grounds of race, gender and family status. I am satisfied, from the totality of the evidence adduced, that the complainant was not discriminated against on grounds of race, gender or family status in relation to this matter.
6. DECISION OF THE EQUALITY OFFICER
6.1 I have completed my investigation of this complaint and in accordance with section 79(6) of the Employment Equality Acts, 1998-2008 I issue the following decision. I find -
(i) that the respondent did not discriminate against the complainant on grounds of race, gender and/or family status in terms of section 6(2) of the Employment Equality Acts, 1998 -2008 and contrary to section 8 of those Acts in respect of training, promotion and/or conditions of employment in respect of the following matters
- The alleged failure to send her on relevant training courses
- The failure to promote her to Shift manager
- The failure to give her a pay rise on promotion to Area Manager
- The alleged failure to roster her to open or close the store
- The failure to restore her to full time hours
____________________
Orla Jones
Equality Officer
26th of January, 2015