DEC-E2015-080

THE EQUALITY TRIBUNAL

EMPLOYMENT EQUALITY ACTS 1998-2011

DEC-E2015-080

Roksana Wypch

(represented by Dermot Sheehan 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, Civil Status, Family status, Disability, Harassment, Sexual harassment, Prominent ears

Dispute

1.1 The case concerns a complaint by Ms Roksana Wypych that Pagewell Concessions (Ilac) Limited trading as €uro 50 store, Ilac Centre, Dublin 1. Ms Wypych is claiming that the respondent discriminated against her on the grounds of race (she is Polish), gender, civil status (she is separated from her husband), family status (she is a mother) and disability (she submits that she has protruding ears) leading to dismissal contrary to Section 8(6)(c) of the Employment Equality Acts 1998-2011 [hereinafter referred to as ‘the Acts’]. She is also claiming harassment on the same grounds within the meaning of 14A of the Acts.

1.2 The complainant referred complaints under the Act to the Director of the Equality Tribunal on 28th January 2013. On 8th April 2014 in accordance with his powers under Section 75 of the Act, the Director delegated the case 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 2014.

Summary of the complainant’s case

2.1 The complainant commenced employment with the respondent on 9th December 2011 as a General Sales Assistant in what is colloquially known as a ‘pound shop’.

2.2 She was asked to become a Trainee Manager in July 2012. Her monthly salary was now €1,916.67 (gross). The complainant submits that as a separated woman with two children she was discriminated against at work. She submits that she heard gossip in her workplace that she is actually living with husband while claiming One Parent Family allowance. She submits that a man would never be subject to such gossip.

2.3 She submits that when she had to leave work on time to attend to her family commitments, she was told that she was unprofessional and using her children as an excuse t leave work early. As evidence she submits an email on 26th October in response to a request for leave:

26 October 2012

Peter,

I need to consult Alex who is in charge of the store before any decision could be arrived at. By why are people suddenly remembering their child’s birthday and chasing me on my holiday.

Any holiday request is to be made to me min 2 to 4 weeks in advance as per norms.

I don’t appreciate people who are unable to plan their holidays especially when it is in connection with the kids birthday

I don’t believe that they will be able to plan anything for the store, if they are not able to plan their own child’s birthday 2 weeks in advance.

Kind regards

Sushil

2.4 Ms Wypych is self-conscious about the appearance of her ears. She submits that her co-workers told her that they look strange. In December all customer-facing employees had to wear elf-hats. A colleague told her that the hat suited her. She submits that she was mocking her.

2.5 She submits that she was summarily dismissed on 29th December 2012. She submits it was a trumped-up charge. She reported part of a delivery missing as per company procedure. Neither she nor other employees could find the missing products on the day of delivery so that is why she reported it as missing. The products were subsequently found. She submits that dismissal is a grossly disproportionate response to her demonstrating responsibility by reporting merchandise as missing which she genuinely believed to be true. The dismissal, however, is the subject of an unfair dismissal complaint.

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. Ms Wypych worked there for two periods of employment. She worked for the respondent from 10th December 2011 to 12th May 2012 when the complainant resigned. Ms Wypych applied to be taken back and worked as a Trainee Manager in the Ilac centre store from 18th September 2012 to 29th December 2012.

3.2 While the respondent appreciates that the dismissal is not being dealt with as part of this investigation, it wishes to point out that the complainant reported ten pallets of goods missing (value approximately €11,000). Needless to mention, the respondent was very alarmed at this amount of merchandise going missing. The respondent found out the following day that these palettes were not missing. The respondent maintains that this is not how a Trainee Manager should behave. Ms Wypych should have searched more carefully for the missing goods. She was represented by her Trade Union official at the dismissal meeting and an appeal was allowed.

3.3 At no stage during her employment did the complainant raise the issue of people gossiping about her behind her back so it was impossible for the respondent to investigate this.

3.4 The respondent denies a servant or agent of them ever calling her unprofessional for caring for her children. Again Ms Wypych does not say who allegedly said this making it difficult to explore whether it occurred or not.

3.5 Regarding prominent ears being a disability, the respondent submits that Ms Wypych’s ears do not stick out and, to impute this as a disability, makes nonsense of the Employment Equality Acts. If the remark was actually made about saying the elf hat suiting her, the respondent submits that it was intended as a compliment.

3.6 The respondent cites Andoo v Pagewell Concession (Ilac) Ltd where they were fully vindicated by the Equality Tribunal.[1]

Conclusions of the Equality Officer

4.1 Under 101 of the Acts, I am precluded from investigating the dismissal as that is being pursued in an other forum. Section 14A states that harassment or sexual harassment (if proven) constitutes discrimination by the victim’s employer in relation to the victim’s conditions of employment. Consequently, there are two issues for me to decide:

(i) whether the complainant was harassed within the meaning of Section 14A of the Acts on the grounds of race, gender, disability and family status

(ii) whether the complainant was sexually harassed while in the employ of the respondent

4.2 In reaching my decision I have taken into account all of the submissions, written and oral, made by the parties.

4.3 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

4.4 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. Section 14A (2) provides a defence for an employer if it can prove that it took reasonably practicable steps to prevent the person from harassing the victim, or any class of person which includes the victim, and to prevent the victim from being treated differently in the workplace, and, if and so far as any such treatment has occurred, to reverse its effects.

4.5 I will now turn to each of the incidents which Ms Wypych submits is harassment. In Paragraph 2.2 she submits that she was harassed on the ground of gender, civil status and family status as she maintains she was the subject of false allegations that she was illegally claiming a One Parent Family payment. However, she did not raise this issue with her employer at the time and neither in her submission nor in the hearing was she prepared to those who were making these allegations. Therefore I am satisfied that the complainant has failed to establish a prima facie case of harassment in relation to this issue.

4.6 In Paragraph 2.3, Ms Wypych submits an email where the Area Manager expresses frustration at her request for Annual Leave. I agree with the complainant that insisting on 14 to 31 notice for a day off is draconian. However, it is insufficient to shift the burden of proof regarding harassment on five grounds onto the respondent.

4.7 Disability is defined in Section 2 of the Acts:

‘‘disability’’ means—

(a) the total or partial absence of a person’s bodily or mental

functions, including the absence of a part of a person’s

body,

(b) the presence in the body of organisms causing, or likely to

cause, chronic disease or illness,

(c) the malfunction, malformation or disfigurement of a part of

a person’s body,

(d) a condition or malfunction which results in a person learning

differently from a person without the condition or

malfunction, or

(e) a condition, illness or disease which affects a person’s

thought processes, perception of reality, emotions or

judgement or which results in disturbed behaviour,

and shall be taken to include a disability which exists at present, or

which previously existed but no longer exists, or which may exist in

the future or which is imputed to a person;

Ears frame a face. If they were so protruding as to cause a severe disfigurement, this may constitute a disability within the meaning of the Acts. However, this is not the case with Ms Wypych. To my eyes, her ears were not prominent or abnormal in any way. I appreciate that I am not a medical practitioner. Therefore, at the hearing I asked the complainant has she ever sought medical advice about getting an otoplasty (external ears pinned back). She replied that she never mentioned her ears to her General Practitioner or sought any medical advice regarding whether or not they would benefit from cosmetic surgery. She has not adduced any evidence to demonstrate that, what she sees as her prominent ears, has impeded her ability to live, love or work. In the circumstances of this case, I cannot accept that what the complainant submits is a disability is covered by definition of same in the Acts. The complainant gave direct evidence at the hearing that her solicitor suggested that she should (rather than she gave him an instruction to) make a harassment claim on the grounds of disability under the Acts. I have no way of knowing whether or not this is true. If it is, it does not reflect well on her legal representatives.

4.8 Ms Wypych suggests that her colleague imputed a disability to her when she said that the elf hat suited her. By this she submits that her co-worker meant that Ms Wypych looks like an elf because the hat highlighted her supposedly prominent ears. The definition of impute in the Oxford English Dictionary is ‘to regard (especially a fault or a crime) as being done or caused or possessed by; attribute or ascribe: charge or arraign with fault’[2] However, to benefit from the provisions of the Act, the disability imputed to the complainant must be an actual disability. For example in Ms X v An Electronics Company the respondent imputed a disability of curvature to the spine to the complainant because she slouched. She was dismissed for not declaring this disability in her pre-employment medical. However, she did not have this disability (as medical evidence produced at the hearing demonstrated) and therefore won her case[3]. The facts in Ms Wypych’s case are very different.

4.9 The definition of harassment is subjective to the victim. However, I fail to understand how a remark like ‘The hat suits you’ could have the effect of violating a person's dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person. Therefore, the complainant has failed to establish a prima facie case of harassment on the disability ground.

4.10 Absolutely no evidence regarding alleged sexual harassment was proffered. Therefore this aspect of her complaint also fails.

Decision

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

(i) the respondent did not harass the complainant on the ground of race, gender, civil status, family status or disability contrary to Section 14A of the Acts

(ii) the complainant was not sexually harassed while in the employ of the respondent

Therefore her complaint fails in its entirety.

_______________

Orlaith Mannion

Equality Officer

'Footnotes'

[1] Equality Tribunal Decision DEC-E2013-175

[2] Shorter Oxford English Dictionary (Oxford University Press, 2007) p.1345

[3] Equality Tribunal DEC-E2006-042