DEC-E2015-029

THE EQUALITY TRIBUNAL

EMPLOYMENT EQUALITY ACTS 1998-2011

DEC-E2015-029

Ewelina Gacek

(represented by William John Kelly B.L., instructed by E.M. O’Hanrahan Solicitors)

versus

Pagewell Concessions (Ilac) Ltd trading as €uro 50 Store, Ilac Centre

(represented by Brian Hendley, Citation Professional Solutions)

Keywords: Employment Equality Acts, Gender, Family Status, Race, Constructive dismissal, Promotion, Training, Harassment, Conditions of Employment, Victimisation, Data Protection.

Dispute

1.1 The case concerns a complaint by Ms Ewelina Gacek that Pagewell Concessions (Ilac) Limited trading as €uro 50 store, Ilac Centre, Dublin 1. Ms Gacek is claiming that the respondent discriminated against her on the grounds of race (she is Polish), gender and family status (she is a mother) leading to dismissal contrary to Section 8(6)(c) of the Employment Equality Acts 1998-2011 [hereinafter referred to as ‘the Acts’]. Ms Gacek is also claiming discrimination regarding promotion, training and conditions of employment. She is also claiming harassment on the same grounds within the meaning of 14A of the Acts. A complaint of victimisation, as defined in Section 74 of the Acts, is also being made.

1.2 The complainant referred complaints under the Act to the Director of the Equality Tribunal on 19th December 2012 and a further complaint on 20th May 2013. On 8th April 2014 in accordance with his powers under Section 75 of the Act, the Director delegated both cases to me, Orlaith Mannion, 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. Submissions were received from both parties and as required by Section 79(1) of the Act a joint hearing was held on 23rd April 2015.

Summary of the complainant’s case

2.1 The complainant commenced employment with the respondent on 30th August 2011 as a General Sales Assistant in what is colloquially known as a ‘pound shop’. She was paid the minimum wage i.e. €8.65 @ hour. While the work was hard, she got paid overtime if she worked over 40 hours a week. However, deliveries sometimes came late at night and she submits that employees were instructed to clock out at midnight (but continue to work) if shelving stock was not completed ‘in case a Labour inspector was snooping around their records’ as she submits Mr A [Area Manager] informed her. As they had clocked out, employees did not get paid after midnight nor were taxis provided to bring employees home at these unsocial hours (often 3:00 a.m.). Ms Gacek submits that she used to feel very afraid leaving work in the early hours of the morning as she maintains Dublin 1 is not safe at this time. Public transport had stopped running and she could barely afford a taxi to Dublin 15 (where she lived) on such a low wage. She maintains that this practice was done to save money and to give the pretence that €uro 50 Stores were complying with Organisation of Working Times Act 1997.

2.2 She submits that while she was not happy with her working conditions, Ireland was still in recession and jobs were in short supply. She was anxious to progress her career so when she was asked to become a Trainee Manager in November 2011, she readily agreed. Her annual salary was now €22,000 but she did not get paid overtime. She worked an average of 60-70 hours per week which meant that she earned significantly less than what she earned as a Sales Assistant i.e. below the minimum wage. On 8th December 2011 she signed a management handover form with Mr B (the former Store Manager and now €uro 50 admin) which meant she became the de facto Store manager. She submitted this document (signed by both) in evidence. Her responsibilities changed –She was asked to open the store which is a specific duty of a store manager. The buck stopped with her. She submits that she was responsible for the whole store - staff, layout of the store, deliveries and training as well as any problems or irregularities that emerged from same. She submits that Mr B said that her salary would be increased at her next review to reflect her increase in responsibilities. She submits the following email as evidence that she was the Manager in charge:

From Mr A:

To: All Staff

18 January 2012 14:01

Re. Management duties

Dear all

We have a concern that the store management team does not know what their responsibilities in the store.

In each store there is one personal that is responsible of the whole store and another member of the team that is helping.

701 Ilac Centre Ewelina

702 Clonmel [Male]

703 Balbriggan [Male]

Above names persons are in charge of their stores and they are making all the decisions concerned with the store. Any information going out from the store has to be passed on to them. [my emphasis]

2.3 In February 2012 Ms Gacek informed her employer that she was pregnant. She was instructed to take all ante-natal appointments outside work hours. Ms Gacek says this was extremely difficult when she was working 70 hours per week. Toilet breaks were discouraged. She worked 11 (long) days in a row once while heavily pregnant. She submitted the following email to show how she was treated while she was pregnant as well as further evidence that she was the de facto Manager:

From Mr B [€50 Admin]

Cc: Mr A

To: 701 Ilac Centre

24 march 2012 08:44

Hi Ewelina

Please also include picture of Bulk Stack every day. I know that one part was removed but you still have second part.

I don’t know if you noticed but the date & time in your cameral is not set up properly

Also I know that you are using public transport to get to the store. Sometimes though you are in the store 1.5hr before opening. I hope that you are not counting this additional time to your daily work time

As I can see from your yesterday rota you came to the store at 07:40 and clocked out at 15:55 which is showing 07:55 hours. Now taking the addition al 20 min and 30 min break you have worked 07:05 hors even if we won’t count the brake (sic) then it is still 7:30 hrs which is 30 min less than the daily minimum.

I can understand that you are pregnant but I can still show you time sheets of other managers that were pregnant and still were doing 60-80 hrs a week and worked till the last day. Only last year two managers nearly got their baby in the store, they finished in the afternoon and in the evening they were in labour. Also their stores are much more difficult than yours. This is the commitment they are giving to us, we didn’t ask them.

I hope that you understand that you are the manager, not the staff anymore and you have much more responsibility to your staff and the store. [my emphasis]

Regards

Mr B

€50 Admin

2.4 She submits that she was expected to be in the store long before it opened to receive the cash delivery. Ms Gacek maintains that she would receive phone calls and emails and be expected to answer them long before her official starting time – why else would she choose to be in her workplace so early? When she raised the issue of when would her salary reflect her new responsibilities, she submits Mr A repeatedly said that she would not be paid as a Manager until after she returned from maternity leave as the company did not want to pay her a higher salary during her, as he called it, ‘maternity holiday’. She maintains that she wished to take annual leave immediately prior to her commencement of her period of confinement but she was not allowed to. Ms Gacek submits that she could easily have got a medical certificate from her GP to say that she was not fit for work as she was exhausted. However, out of loyalty to the company and because she was promised a promotion-related pay review she worked until very close to her due date.

2.5 While on maternity leave, she submits that Ms C (Acting Store Manager of the Ilac Centre while Ms Gacek was on maternity leave) told her that Mr A said that she would have to move to the Balbriggan store if she wanted to keep her Store Manager job. Ms Gacek submits that this caused her stress as there was no direct public transport from Dublin 15 to Balbriggan but decided to take a ‘wait-and-see’ approach. Ms Gacek emailed on 20th November 2012 to say that her maternity leave finishes on 1st January 2013 and that she was available tor return to work the following day (2nd January). Despite giving plenty of notice she was instructed to take 14 days annual leave out of an allowance of 20 days annual leave (excluding 9 days public holidays). This did not suit her as it only left her with a week’s holidays for the remaining 11 months of the year. Especially as the custom and practice was that medical appointments are taken out of annual leave, this increased the pressure on her with two young children.

2.6 When she returned, Ms Gacek maintains that her working conditions had dramatically changed. She was now reporting to Ms C who was previously junior to her before she went on maternity leave. Ms Gacek was not given keys to the office or the code to the safe both of which she previously had before she went on maternity leave. Neither was she allowed to send work-related emails. Ms Gacek submits that this was a big come-down for her as she was previously the manager in charge. As per company procedure, she raised a grievance about this issue of what was, in effect, a demotion on 21st January 2013. A meeting was held on 23rd January 2013. Ms Gacek pointed out that the handover form was still in her name so she should continue to be the Manager. She reiterated that she was told that she would receive the salary of Manager after she returned from maternity leave. At that meeting she said that she believed this demotion was because she had returned from maternity leave. The result of the grievance meeting was communicated to her by letter on 11th February. In it Mr B stated:

On investigation I can confirm that you started as a sales assistant 30.8.2011 and you were promoted from a sales assistant into the management team as Trainee Manager as of 3.11.11 subsequently you have had a second pay review on 1.6.2012. However, I cannot confirm that there was any promotion into the position of Store Manager. From my investigations, I have found that handover did take place between yourself and Peter but that this was part of the till handling procedures and does not constitute any form of promotion. Peter has denied that he told you that you would be the Store Manager at any time, and therefore without any independent witnesses I am unable to substantiate this part of the grievance.

It is clear that when you left to go on maternity leave you were a trainee manger and you have returned to the same position. This show that the management have treated you on par with any other person working at your level in the company at all times.

However, should you be able to provide any documented evidence that your position was anything other than a training manager when you left for your maternity leave, please provide this to me where I will be happy to investigate this matter further. [my emphasis]

2.7 Regarding the pay review, every Trainee Manager and above got a small rise. On reading this, Ms Gacek submits that she was very upset and promptly photocopied the Manager Handover form (which is different from till handling procedures as mentioned in the above email) and the emails in Paragraph 2.2 and 2.3 to prove that she was actually a Manager. Following submission of same to her employer, she was shocked when she received the following letter.

SUSPENSION AND CALL TO DISCIPLINARY HEARING

20/3/13

Dear Ewelina,

I write to confirm that on 19/2/13 and in line with the company’s disciplinary procedure you were suspended on full pay pending an investigation of violation Data Protection Act in that you have taken copies of company documents which are covered by Data Protection Act 1998.

I would remind you that suspension itself does not constitute disciplinary action but has been instigated in order to enable a full investigation to take place. I would remind you that during this period of suspension you remain an employee of the company and it may be necessary for me to contact you during your normal working hours and should this be the case then you are required to make yourself available.

During the course of your suspension you ae instructed not to contact or to attempt to contact or influence anyone connected with the investigation in any way or to discuss this matter with any other employee or client of the Company. However, should you wish to contact any employee who you feel could assist you in preparing an explanation for the allegation made against you, then please contact me in order that arrangement can be made for them to be available for interview. It is essential that you do not attend your place of work.

You are required to attend a disciplinary hearing under the Company’s disciplinary procedure, as detailed in your Employee Handbook. This meeting has been arranged for Tuesday 05.03.13 at 1 pm and is to be held in € 50 stores ltd, Ilac Centre, Dublin.

At this meeting you will be given every opportunity to put your point of view forward with regard to the following allegations

· You are in serious breach of Company policy and the Data Protection Act 1998 in that you have taken copies of confidential Company documents (some of which relating to other employees) without permission when this is not required of your role. [my emphasis]

· Breach in the trust and faith the company has in you in your position of responsibility as one of the duty managers of the Company

The matters above are very serious and may amount to gross misconduct which could result in your dismissal form the Company.

At the hearing, you will be given the opportunity to fully explain your case and respond to the allegations. You may ask questions, dispute the evidence, provide your own evidence and otherwise argue your case. You may also put forward any mitigating factors which you consider relevant to your case. Due consideration will be given to any factors or explanations which you raise before considering what, if any disciplinary sanctions are to be imposed.

The disciplinary hearing will be chaired by Mr B, and Mr M will also be present to take notes of the meeting.

You are entitled if you wish to be accompanied by a work colleague or a trade union official. Please let us know immediately if the person you wish to accompany you is unable to attend the meeting on the date and time specified above.

Your attending this meeting is essential and you are reminded that you are required to take all reasonable steps to attend the hearing. Failure to so, without good reason, is deemed to constitute a failure to follow a reasonable management instruction and cam amount to gross misconduct, which if proven, can warrant summary dismissal. In these circumstances your failure to attend will be considered alongside the above matters and a decision may be made in your absence.

After the disciplinary hearing you will be informed in writing of the company’s decision,

Ours sincerely

Mr B

2.8 Ms Gacek attended the disciplinary meeting, which she submits, was a set up. As documented in the letter at 2.6, the respondent told her to find documentation to support her case and then brought her down the disciplinary route when she followed their instructions. The only documents she photocopied were ones to prove that she was the de facto Store Manager. All documents contained information about herself and were documents that she previously had sight of. Ms Gacek maintains that she absolutely did not go through other people’s personal information. There was no outcome from the investigation until 29th April 2013 even though the disciplinary hearing was on 5th March 2013. Without any warning she was instructed to come into work the following day. She received a written warning for what she submits was not even a breach of company procedure. Following the receipt of the written warning, she felt she had no choice but to resign. The respondent refused to pay her annual leave entitlements which she submits is victimisation. She submits that it was clear that her employer was trying to get rid of her, through fair means or foul.

2.9 Regarding legal argument, the complainant cite Gardiner v Mercer Human Resource Consulting[1]and Julie O’Brien v Persian Properties trading as O’Callaghan hotels[2] as relevant case law.

Summary of the respondent’s case

3.1 Pagewell Concessions (Ilac) Ltd trades as €uro 50 store, Ilac Centre. It is the Irish fascia of the UK brand - 99p store. The respondent accepts that the complainant was employed as a Sales Assistant and was promoted as Trainee Manager on 3rd November 2011 The respondent denies that the complainant was ever a Store Manager. Like all trainee managers she was expected to take responsibility and sometimes opened or closed the store. Pagewell Concessions (Ilac) Ltd deny that she was ever required to work 70 hours per week. As a Trainee manager she was contracted to work six days per week. The respondent submits that the average hours that she was 46 hours a week. They submit that she withdrew a case from the Rights Commissioners under the Organisation of Working time Act 1997.

3.2 When Ms Gacek informed the respondent that she was pregnant, they conducted a risk assessment on 13th January 2012. This is submitted as evidence. The respondent accepts that the complainant was denied annual leave immediately prior to the commencement of her maternity leave they submit that was for operational reasons as her manager had to cover another store. Annual leave is within the gift of the employer. While Ms Gacek was on maternity leave, Ms C who was also a Trainee Manager was given the responsibilities of the Assistant Manager not Store Manager as Ms Gacek alleges. This is because she had performed well as Trainee Manager in the Balbriggan store. Like Ms Gacek, Ms C was Polish and female. She was also pregnant at this time.

3.3 The respondent submits that Ms Gacek did not appeal her grievance. The respondent submits that the complainant was just disappointed that somebody at the same level was promoted ahead of her. The respondent submits that accessing the company’s documents was a serious mistake and they could have dismissed her. Instead they merely gave her a written warning.

3.4 Prior to the Rights Commissioner hearing, the respondent lodged the remaining amount they owed the complainant which was only €2.88.

Conclusions of the Equality Officer

4.1 A crucial witness in this case was one brought by the complainant. Ms D was Irish and not a mother. She was a Trainee Manager at the time Ms Gacek was the de facto Store Manager. She corroborated the evidence given by Ms Gacek in Paragraphs 2.1 to 2.4. Ms D left of her own accord while Ms Gacek was on maternity leave. She submits that she was only Irish person working there at that time and she left because she was not willing to put up with the dreadful working conditions. She submits the respondent’s approach was to make anybody with a strong work ethic a Trainee Manager as it saved them money on overtime in the long run. She also said she was afraid leaving work at 2:00 a.m. and later but, being Irish she had a greater support network around her, so often had somebody to collect her. At the hearing, she gave direct evidence that she left €uro 50 (without acrimony) to become a Retail Manager role in another company. She continues to work there. She stated that the retail industry is tough and target-driven. As a manager, she is content to work longer hours than her staff but that the conditions under which employees of Pagewell worked were exploitative. She said that no Irish person would put up with these conditions on a long-term basis.[3]

4.2 There are three issues for me to decide:

(i) whether the complainant was harassed within the meaning of Section 14A of the Acts

(ii) whether the respondent discriminated against her regarding her conditions of employment on the grounds of race, gender and family status

(iii) whether the complainant was discriminated in relation to promotion on the above grounds

(iv) whether the complainant was discriminated in relation to training on the same grounds

(vi) whether the complainant was victimised within the meaning of Section 74 (2) of the Acts leading to constructive victimisatory dismissal

4.3 In reaching my decision I have taken into account all of the submissions, written and oral, made by the parties. Section 6(2A) of the Act states that discrimination on the gender ground shall be taken to occur where, on a ground related to her pregnancy or maternity leave, a female employee is treated, contrary to any statutory requirement, less favourably than another employee is, has been or would be treated. Discrimination on the grounds of family status (in the complainant’s case as a parent) and race is also prohibited.

4.4 Section 85A of the Act sets out the burden of proof which applies to claims of discrimination. It requires the complainant to establish, in the first instance, facts upon which she can rely in asserting that she was discriminated against. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised.

Harassment

4.5 Harassment is defined in Section 14A(7) of the Acts as any form of unwanted conduct related to any of the discriminatory grounds which has the purpose or effect of violating a person's dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.

4.6 The complainant and Ms D (corroborated by the documentary evidence which the respondent accepts are true copies of emails sent) paint a picture of a dystopian work environment. In my seven years as an Equality Officer, I have only come across one case where the working conditions were worse[4]. To expect people on the minimum wage to work past midnight and NOT to get paid for it as well as not pay their taxi home at such unsocial hours violates an employer’s duty of care to their employees. Both Ms Gacek and Ms D gave cogent evidence of an atmosphere filled with aggression, false promises and threats. I find Ms D is quite correct in describing the appointment of more trainee managers than necessary (so as to avoid paying them overtime) as a scam. She gave cogent evidence that she only worked there for a few months because of the hostile work environment. She was the only Irish person working there at that time and said that Irish people would not put up with these conditions on a long-term basis. Ms Gacek stayed over two years as she felt she had no choice but to remain because she was not Irish and therefore her job prospects would not be as good – especially in a recession. I find this treatment of Ms Gacek meets the definition of harassment under the Acts in that it is unwanted conduct connected to the ground of race which had the effect of creating an intimidating and degrading work environment. The respondent did not submit any facts in evidence that would fall within the defence set out in Section 14A(2) of the Acts. Therefore, the respondent has failed to rebut the complainant's prima facie case of harassment on the ground of race.

Conditions of Employment

4.7 Section 8 (6) of the Acts states that an employer shall be taken to discriminate against an employee in relation to conditions of employment if, on any of the discriminatory grounds, the employer does not offer or afford to that employee

(a) the same terms of employment (other than remuneration and pension rights),

(b) the same working conditions

(c) the same treatment in relation to overtime, shift work, short time transfer lay-off, redundancies, dismissals and disciplinary measures

as the employer offers or afford to another person where the circumstances in which both are employed are not materially different.

4.8 It bears repeating that less favourable treatment linked to pregnancy and/or maternity leave is discrimination on the grounds of gender. Ms Gacek gave cogent evidence of excessive monitoring of toilet breaks and that no accommodations were made for pregnant women. The respondent is correct that granting annual leave is within the gift of an employer. However, in the Supreme Court Judgment Berber v Dunnes Stores Finnegan J has found that:

There is implied in a contract of employment a mutual obligation that the employer and the employee will not, without reasonable and proper cause, conduct themselves in a manner likely to destroy or seriously damage the relationship of confidence and trust between them. The term is implied by law and is incident to all contracts of employment unless expressly excluded. The term imposes reciprocal duties on the employer and the employee.[5]

Put simply, employers and employees should treat each other as they would like to be treated.

4.9 It is an explicit term in the complainant’s written contract of employment that she had to work a six-day week. By the respondent‘s own admission, Ms Gacek worked long hours. She started and finished at times when it would be unusual for either hospitals or GPs to take appointments. She only received the statutory annual leave allowance (20 days excluding public holidays). In the circumstances of this case, expecting her (and the complainant produced documentary evidence to this effect) to take all ante-natal appointments out of her annual leave was, at least, ungenerous. Coupled with working eleven days without a day off in between and the refusal of annual leave immediately prior to her period of confinement, I find this to be less favourable treatment linked to her pregnancy i.e. she was discriminated in relation to her conditions of employment on the grounds of gender. This is separate from any claim she may or may not have under the Maternity Protection Acts 1994 and 2004 – legislation under which I have no jurisdiction.

4.10 I find the insistence on her taking two thirds of her annual leave allowance immediately after her return from maternity leave was callous and unnecessary as she had given plenty of notice of her availability to return to work. It is discriminatory on the grounds of family status – as a parent. The respondent’s attitude to pregnancy and new mothers as employees was encapsulated by Mr B’s repeated references to maternity leave at the hearing as a ‘maternity holiday’.

4.11 On the balance of probabilities, I find the complainant has established a case of discriminatory treatment regarding conditions of employment on the gender and family status ground and the respondent has not rebutted it.

Promotion

4. 12 Under Section 8 (8) of the Acts, An employer shall be taken to discriminate if on any of the grounds the employer refuses or deliberately omits to offer access to opportunities to promotion. It is clear from the documentary evidence at Paragraph 2.2 and 2.3 and the direct evidence given by Ms D (who reported to Ms Gacek even though both were trainee managers according to the respondent) Ms Gacek was the de facto Manager of the Ilac centre shop. She was promised that her salary would reflect her responsibilities but this never happened. First of all, she was told it was because she was newly-appointed as a Manager and then she was told it was because she was pregnant and everything would be sorted out when she returned from maternity leave. But it was not.

4.13 She returned to have responsibilities removed from her e.g. access to the safe and email and asked to report to somebody who was previously her junior. As the respondent points out Ms C is also a Polish woman. However, they are being disingenuous when they say she was pregnant. Ms C was not pregnant when she was given the responsibilities of Manager – the respondent produced a letter from her obstetrician to say that she was seven weeks pregnant on 20th March 2013 – long after she became the Manager in charge. She was not brought as a witness to the hearing nor was any evidence adduced to show whether she was treated more or less favourably than the complainant i.e. whether her salary reflected her responsibilities or what happened to her when she returned from maternity leave. In the absence of this evidence, there are frailties in the respondent using her as an appropriate comparator for the purposes of disproving discriminatory treatment.

4.14 It must also be borne in mind that from 8th December 2011 until Ms Gacek resigned on 30th April 2013 she never received a Manager’s salary. I find that the respondent deliberately omitted to promote Ms Gacek and this is linked to her pregnancy. The respondent said that she would not be paid the salary of a Manager until she returned from maternity leave. As a mother of a young infant, she returned to work to find that not only was she not receiving the salary of a Manager (as promised) but her responsibilities were greatly diminished as well. From the evidence, I find that Ms Gacek had the responsibilities of a Store Manager and should have been paid accordingly. She has raised a prima facie case of discrimination regarding promotion on the grounds of gender and family status and the respondent has not rebutted it.

Training

4.15 The complainant submitted that she received no training and that this was discriminatory. However, lack of training is a generic complaint cited by many employees working in various workplaces and she has not established a nexus to the grounds of race or gender or family status. Therefore, Ms Gacek has NOT established a prima facie case regarding training and this aspect of her case fails.

Victimisatory Dismissal

4.16 Section 74 (2) of the Act states victimisation occurs where dismissal or other adverse treatment of an employee by her employer occurs as a reaction to a complaint of discrimination made by the employee to the employer, any proceedings by a complainant, an employee having represented or otherwise supported a complainant, the work of an employee having been compared with that of another employee for any of the purposes of this Act, an employee having been a witness in any proceedings under this Act, an employee having opposed by lawful means an act which is unlawful under this Act, or an employee having given notice of an intention to take any of the above actions.

4.17 When Ms Gacek arrived back to work after maternity leave she was in effect demoted despite being promised a pay-rise reflecting her previous increase in responsibilities. She raised a grievance about this issue and clearly told her employer that she believed it to be discrimination. What happened next is classic victimisation. As documented in the letter Paragraph 2.6, she was instructed to provide evidence that she was actually a Manager. As a conscientious employee she printed off documents that proved her position. Instead of complimenting her, a disciplinary investigation commenced as she supposedly breached the Data Protection Acts 1988 -2003.[6] This shows a mistaken understanding of data protection law. First of all, Ms Gacek has a personal right to access to data about herself. In no way did she breach data protection laws by showing documents to her employer, from her employer to herself. For an organisation supposedly concerned about unfair data processing, the respondent took a cavalier attitude to the protection of sensitive personal data of other employees. The intimate gynaecological records of Ms C were shared with me which I neither asked for nor were they necessary to defend their case.

4.18 Whether the respondent was angry that Ms Gacek had the temerity to attempt to prove that she was the de facto manager of the Ilac store or whether it was a trap, I cannot say with certainty. Either way a written warning after a long period of suspension was disproportionate. This series of events eviscerated Ms Gacek’s trust and confidence in her employer. The definition of dismissal in Section 2 of the Acts includes constructive dismissal i.e. because of the conduct of her employer the circumstances were such that it would be reasonable for the complainant to terminate her contract of employment. Constructive dismissal has a high threshold and rightly so. People should not be able resign on a whim and then seek compensation for doing so. In this case, the complainant exhausted all internal avenues with her employer - she raised a grievance, appealed the grievance, attended a disciplinary meeting with a trumped-up charge and waited almost two months for the result of same. Had she returned to work, she would have been demoted in terms of responsibilities when she had been promised that she would be remunerated as a Manager upon her return from maternity leave. All of this occurred even though she had been an exemplary employee.

4.19 Regarding not being paid for the remainder of annual leave, I am prepared to accept the respondent’s answer that this was a clerical error and was eventually paid. Therefore, I do not regard this particular incident as victimisation.

4.20 Having evaluated all the evidence adduced to me, I am satisfied that the complainant established facts of sufficient significance to raise a presumption of victimisatory constructive dismissal and therefore the probative burden is transferred to the respondent. There is nothing in the evidence tendered by the respondent which rebuts that presumption of victimisation.

Redress

4.21 The maximum award I can order is two years of salary for discrimination and two years of salary for victimisation. In calculating redress for the complainant, I must be cognisant of a number of considerations. Ms Gacek excelled in her role as Sales Assistant and was quickly promoted to Trainee Manager. A month later she became the de facto manager of the Ilac Centre store. She was promised her salary would reflect her responsibilities when she returned from maternity leave. Instead when she raised a grievance the respondent retaliated with a spurious disciplinary charge leaving her with no option but to resign. All of these events occurred in a work environment of aggression, excessive surveillance and underpayment. The respondent has argued that that the nature of discount stores is that they work off tight margins and therefore must keep all costs down. I fully understand that the aim of any private enterprise is to make a profit. However, they must operate within the law in the jurisdictions where they conduct their business – including employment law.

4.22 I am also guided by Article 25 of the recast Directive which states penalties must be effective, proportionate and dissuasive[7]. I am satisfied that compensation rather than re-engagement or re-instatement is the most effective form of redress in this instant case. The redress must be proportionate to Ms Gacek’s salary. The award must also dissuade the respondent and other employers from unlawful discrimination. For the avoidance of doubt, I am awarding redress for harassment, conditions of employment and promotion and only for the events described in Paragraphs 4.5 to 4.14 and awarding redress for victimisation only for what is described in Paragraphs 4.16 to 4.18.

Decision

5.1 I have concluded my investigation of Ms Gacek's complaint and hereby make the following decision in accordance with Section 79(6) of the Acts. I find that:

(i) the respondent harassed the complainant on the ground of race contrary to Section 14A of the Acts

(ii) the respondent discriminated on the ground of gender and family status regarding her conditions of employment

(iii) the respondent discriminatorily treated the complainant the grounds of gender and family status in relation to promotion

(iv) the respondent did not discriminate against the complainant regarding training on any of the grounds

(v) The respondent victimised the complainant within the meaning of 74(2) of the Acts.

5.2 In accordance with Section 82 of the Act, I order the respondent pay the complainant:

(a) €33,000 (the equivalent of 18 months salary) in compensation for the harassment, conditions of employment and promotion

(b) €22,000 (the equivalent of a year’s salary) in compensation for the distress caused by victimisatiory dismissal.

The total award of €55,000 is redress for the infringement of Ms Gacek's statutory rights and, therefore, not subject to income tax as per Section 192A of the Taxes Consolidation Act 1997 (as amended by Section 7 of the Finance Act 2004).

_______________

Orlaith Mannion

Equality Officer

[1] DEC-E2007-007

[2] DEC-E2012-010

[3] The complainant also brought an other former employee who is also pursuing a case against the respondent. I treated her as a hostile witness. The respondent brought an Assistant Manager in the Clonmel Store. His evidence is less relevant as he did not work in the Ilac Store at that time.

[4] DEC-E2010-154 10 complainants v MJ Quay Ltd

[5] Berber -v- Dunnes Stores Limited [2009] IESC 10

[6] What the respondent refers to in the letter in Para 2.7 is the data protection legislation in the UK. Obviously it is the Data Protection Acts 1988 -2003 which apply in this jurisdiction. As both emanate from the same European Directives, the import of them does not differ significantly. However, Ms Gacek lives and works in Ireland, it should have been the Irish legislation that was referred to in the letter.

[7] Directive 2006/54/EC of the European Parliament and of the Council of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation Official Journal L 204 , 26/7/2006 P. 0023 - 0036