EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E2016-039
PARTIES
Ms Rashmi Sharma
AND
Wink Eye Salon
File reference: EE/2014/316
Date of issue: 7th March 2016
HEADNOTES: Employment Equality Acts Sections 6, 8(1) (a) – Family Status and Race – Discrimination on Conditions of Employment, and Section 14(A) Harassment.
1. DISPUTE
1.1 This dispute concerns a claim by Ms Rashmi Sharma (Claimant) that she was discriminated on grounds of family status and race contrary to Section 6 of the Employment Equality Acts; regarding her conditions of employment in terms of section 8 of those Acts; and that she was harassed contrary to section 14A of the Employment Equality Acts. The Claimant alleged the last acts of discrimination and harassment that she experienced were on 4th June 2014.
1.2 The complainant referred a claim to the Director of the Equality Tribunal on 7th June 2014 under the Employment Equality Acts. On 7th November 2015 in accordance with his powers under section 75 of the Employment Equality Acts, the Director General of the Workplace Relations Commission delegated the case to me, Gerry Rooney, an Adjudication Officer/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 which date my investigation commenced. Submissions were received from both sides. In accordance with Section 79(1) of the Employment Equality Acts and as part of my investigation I proceeded to a hearing on 18th January 2016.
1.3 This decision is issued by me following the establishment of the Workplace Relations Commission on 1 October 2015, as an Adjudication Officer who was an Equality Officer prior to 1 October 2015, in accordance with section 83 (3) of the Workplace Relations Act 2015
2. CLAIMANTS' SUBMISSION
2.1. The Claimant has a young family of two children and commenced full time permanent employment with the Respondent in November 2013. She is an Indian national and was appointed as a Threader and Sales Assistant at the Respondent’s concession outlet in Clery’s store, Dublin.
2.2. Shortly after commencing employment the Claimant contended that she was required to attend work at short notice. However on a number of occasions, due to her family circumstances, she experienced difficulty in getting to work on time and this resulted in her manager harassing her. The Claimant alleged this happened on a number of occasions shortly after her appointment, and consequently she sought to have reduced working hours.
2.3. The Claimant advised that she was granted shorter working hours but the hours offered to her were only 18 hours per week which was less than she was available to work for and she alleged she was discriminated on the basis of her family status in relation to her working hours.
2.4. The Claimant also alleged that she was told by a previous staff member that her manager spoke to other members of staff in a discriminatory manner where they were accused of not working as well as white people who were employed in other concessions outlets adjacent to her store. The Claimant alleged that similar remarks were made to her. The Claimant also alleged that her manager made remarks about her husband and her family
2.5. The Claimant also alleged that she attempted to have her concerns addressed, initially by the Department Store’s manager who was not in a position to address her concerns and advised her the issues should be brought up with the Respondent’s management. When the Claimant attempted to have her concerns addressed by the Respondent’s managing director or other senior manager she contended her concerns were ignored and not dealt with. She therefore felt that due to the discrimination and harassment she experienced from her line manager and subsequent lack of response from the Respondent that she had no option but to leave her job and raise a complaint to the Workplace Relations Commission.
3. RESPONDENT'S SUBMISSION
3.1. In its response the Respondent has denied that it discriminated against the Claimant on family status or race grounds. The Respondent stated that the issues as alleged did not happen, and that the Claimant has failed to identify any comparator in relation to the allegations of discrimination the grounds of family status or race.
3.2. The Respondent disputed the Claimant’s version of events. It contended that the Claimant was employed in a full time role as a Threader in its salon outlet at Clery’s Department Store, Dublin. The Claimant was offered a full time job in September 2013 and was provided a contract of employment in November 2013. The role required the Claimant to be available to open the concession outlet, and to work some evenings. At busy times she was supported with other staff members.
3.3. As part of its contract to run an outlet with the Department Store, the Respondent was required to have its operation open by a certain time in the morning. This contract was renewed on a monthly basis. Consequently the Claimant was employed on a fulltime basis where she was required to be present in the morning to open the outlet. Her manager visited the store on a regular basis, as she did other stores in Dublin.
3.4. The Claimant contended that threading was a specialist beauty treatment and typically those qualified for the role were Asian or Egyptian because, despite trying, it was not possible to recruit competent Threaders from non-Asian or Egyptian cultures. On that basis the Claimant was not treated less favourably to persons of another race, arguing that her claim must fail. In addition her line manager was Asian from South Africa.
3.5. Notwithstanding the Respondent also advised that shortly after recruitment the Claimant had arrived late for work on four occasions over a six week period which meant their outlet was late opening and this caused complaints from the Department Store as it was contrary to their lease obligations. As a result her line manager had to address the matter with the Claimant, but she arrived late again on a further three occasions. As the working hours were also an issue for the Claimant the Respondent contended that the Claimant came to them and in December 2013 where they agreed to change her start time. At this time the Claimant advised the Respondent that she wanted to work less hours and that she would only be available on particular days due to family circumstances. The Claimant also advised the Respondent that as her husband had a good job she did not need a lot of hours. In response to this, and to facilitate the Claimant, the Respondent agreed to reduce the Claimant’s working hours. The Respondent offered a shorter working hour contract of 18-20 hours per week, which was the same as all other staff on shorter hours; and the Claimant accepted this. The Respondent advised that it could not provide the Claimant with longer hours as they only had one category of part time worker. They therefore argued that in January 2014 they did in fact facilitate the Claimant regarding her family circumstances by reducing her hours, but they could not offer her more part time hours.
3.6. In addition, despite offering reduced working hour, timekeeping issues remained. As a result the Respondent issued a warning to the Claimant.
3.7. The Respondent also advised that it had granted the Claimant time off to go to India in February 2014 for three weeks to facilitate her family circumstances.
3.8. The Respondent contended that there was also a number of issues regarding the Claimant’s performance that they had to address. This included dealing with two customer complaints which resulted in her line manager issuing the Claimant with a warning. In this regard the Respondent dealt with a second customer complaint on 1st June 2014. Also on 5th June 2914, having agreed to change her shift to facilitate the absence of another member of staff, the Claimant again arrived in late. It was at this time the Claimants line manager sought to address these matters, and the following day the Claimant contacted the Department Store’s management to raise a complaint of harassment against the Respondent. The Department Store advised the Respondent of the complaint.
3.9. The Respondent also denied making comments to the Claimant where she was compared to white people. The Respondent contended that they did have to advise the Claimant of the need to have the outlet open and operating at the same time as the other concession outlets in the Department store, and they would have referred to that. However that was the extend of the comments made in relation to the neighbouring concession outlets and the Claimant was totally incorrect in contending that these comparisons referred to white people, or had racial undertones. The conversations were performance related, were made by her manager who was also Asian, and the Respondent argued that to suggest otherwise was incorrect.
3.10. Ultimately, due to the Claimant’s attendance and performance the Respondent instigated further disciplinary action, but the Claimant left before this process was completed. The Respondent acknowledged that the Claimant resigned on 19th June 2014 but that it did not receive her resignation and complaint until 25th June 2014 due to it being sent to the wrong e-mail address.
3.11. The Respondent advised that the Claimant had every opportunity to raise any issues she may have prior to her resignation, but she did not do so. The Respondent advised that in addition to being able to raise matters with her direct supervisor, the Managing Director and another Senior Manager (both who were based in the UK and travelled to Ireland regularly, and usually every month where they were available to meet with staff) were also accessible and available. They advised that the Claimant never brought any of her concerns to them in relation to the alleged racial remarks, and had she they would have dealt with them in accordance with their policies and procedures.
4. FINDINGS & CONCLUSIONS OF THE EQUALITY OFFICER
4.1. The Claimant alleged that she was discriminated and harassed on the grounds of race and family status.
4.2. The Respondent employed only Asian and Egyptian staff at the time the Claimant worked with them. The Claimant is Asian, as was her supervisor whom she has raised the complaints against.
4.3. The Respondent provided evidence that the Claimant was facilitated in relation to shorter working hours to address her family circumstances, family leave to India, and that her line manager had raised performance issues with her where she had been subject to a verbal and written warning. The Respondent was addressing further performance and time keeping issues in June 2014.
4.4. The Claimant left her employment in June 2014 without seeking to address her complaints with senior management.
4.5. The Claimant failed to provide a comparator in relation to her complaints.
5. DECISION OF THE EQUALITY OFFICER
5.1. I have investigated the above complaint and make the following decision in accordance with section 79 of the Acts:
5.2. I do not find there is sufficient evidence to conclude that the Claimant was treated in a manner that discriminated against her on the grounds of race
5.3. I find that the Respondent did address the Claimant’s family needs by reducing her working hours and that the Claimant accepted the shorter working week. The Respondent also granted the Complainant leave to travel home to India in February 2014. I therefore do not find that the Claimant was discriminated on the basis of her family status.
5.4. The Claimant did not raise any of her concerns with senior management at the time they allegedly occurred despite having ample opportunity to do so. They were only raised at a time when the Respondent was considering taking further disciplinary action against the Claimant due to a customer complaint and further concerns regarding the Claimant’s time keeping. I therefore do not find that the Claimant was harassed as alleged, or that the Respondent acted in a manner that could be regarded as a breach of the Employment equality Acts.
5.5. Based the above, and in the absence of any compelling evidence to support the claim of discrimination on the grounds of family status or race, the Claimant’s complaint fails.
____________________
Gerry Rooney
Adjudication Officer/Equality Officer
7th March 2016