DEC-E2016-045

EMPLOYMENT EQUALITY ACTS 1998-2011

Decision - DEC–E2016-045

PARTIES

Slywia Wach

(represented by SIPTU)

and

Smorgs ROI Management Limited

t/a Travelodge Waterford

(represented by Mr. Conor Bowman B.L. instructed by

McCartan & Burke Solicitors)

File References: et-152606-ee-14

Date of Issue: 9th March, 2016

1. Dispute

1.1 This case concerns a complaint by the complainant that she was discriminated against by the respondent on the grounds of gender, family status and race contrary to sections 6(2)(a), (c) and (h) of the Employment Equality Acts, 1998 to 2011 in relation to her conditions of employment. The complainant also claims that she was subjected to harassment contrary to section 14A of the Acts and victimisation contrary to section 74 of the Acts.

2. Background

2.1 The complainant referred a complaint under the Employment Equality Acts, 1998 to 2011 to the Director of the Equality Tribunal on 17th December, 2014. In accordance with his powers under section 75 of the Employment Equality Acts, the Director General delegated the case on 30th October, 2015 to me, Enda Murphy, an Adjudication Officer/Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions under Part VII of the Employment Equality Acts, 1998 to 2011. This is the date I commenced my investigation. A written submission was received from the complainant on 21st May, 2015 and from the respondent on 29th July, 2015. As required by section 79(1) of the Acts and as part of my investigation, I proceeded to hearing on 9th December, 2015.

2.2 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.

3. Jurisdictional Issue in relation to Time Limits

3.1 The respondent has submitted that the present complaint is out of time and does not comply with the required time limits for the referral of a complaint within the meaning of section 77 of the Employment Equality Acts. Therefore, before making a decision on the substantive issue I must be satisfied that the complaint is properly and validly before the Tribunal.

Summary of Complainant’s Case on Jurisdictional Issue

3.2 The complainant accepts that the present claim was not referred within the prescribed time limits provided for in section 77(5) of the Acts. However, it is the complainant’s position that the delay in referring the complaint within the prescribed time limits was due to a misrepresentation by the respondent within the meaning of section 77(6) of the Acts. The complainant initially referred a complaint to the Director of the Equality Tribunal under the Employment Equality Acts on 1st March, 2012 against Travelodge Management Limited t/a Travelodge Waterford. However, it subsequently transpired that the incorrect respondent was named in these proceedings and the complainant contends that this error arose as a result of the respondent having misrepresented its true identity.

3.3 The complainant’s submissions on the jurisdictional issue can be summarised as follows:

· Over the course of the complainant’s employment she has been issued with employment related documentation (including a Statement of her Terms and Conditions of Employment, payslips, P60’s and Income Levy Certificates) which identified her employer as “Travelodge” or “Travel Lodge”. When the initial complaint was being referred to the Equality Tribunal in 2012 all of these documents were considered and following a search of the Companies Registration Office website the complainant’s representative identified a company named Travelodge Management Limited which she assumed was the correct legal identity of the respondent.

· A colleague of the complainant, in the same employment, initiated proceedings against Travelodge Management Limited t/a Travelodge Waterford under the Organisation of Working Time Act 1997 and the named respondent engaged with the Rights Commissioner Service and attended a hearing in that complaint without objection. The matter was subsequently settled between the named respondent and the complainant in those proceedings.

· The complainant initiated proceedings against Travelodge Management Limited t/a Travelodge Waterford under the Maternity Protection Act 1994 and the Organisation of Working Time Act 1997. The respondent in those proceedings was professionally represented and the representative engaged with the complainant’s representative, the Rights Commissioner Service and on behalf of the respondent without objection. A settlement was reached in these cases and the written settlement agreement between the parties in this matter was headed “Settlement Agreement between Travelodge Management Limited and Slywia Wach”. The terms of this agreement went on to record that Travelodge Management Limited agreed to pay the complainant a sum of money in compensation for not having received a premium for Sunday working and that the complainant agreed to withdraw her claim under the 1997 Act.

· The complainant’s employer has consistently held itself out as “Travelodge Management Limited”, and accordingly, it is the complainant’s employer that has caused the confusion surrounding the correct legal identity of the respondent by issuing legal documents that do not state the correct legal entity.

· In summary, the complainant submitted that the complainant’s employer was fully aware of the aforementioned complaints against Travelodge Management Limited and misrepresented itself as that entity during proceedings before the Rights Commissioner Service and during proceedings which the complainant had initially referred to the Equality Tribunal. It was submitted that had the complainant’s employer not misrepresented its correct legal identity the complainant would have been in a position to refer the initial complaint against the correct respondent.

3.4 The complainant claims that the correct legal identity of her employer only came to light on or about 25th June, 2014. The complainant submitted that the date of occurrence of the discrimination or the date of its most recent occurrence for the purposes of the present complaint is 25th June, 2014 (i.e. the date upon which the misrepresentation came to the complainant’s notice) thereby bringing the present complaint within the required time limits as provided for in section 77(6) of the Acts.

Summary of Respondent’s Case on Jurisdictional Issue

3.5 The respondent submitted that the complainant was employed by a company called Smorgs (Ireland) Limited during the period of time relevant to the present complaint. The business of Smorgs (Ireland) Limited was transferred to Smorgs (ROI) Management Limited in 2014 and the complainant’s employment transferred to that company pursuant to the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003. The complainant worked in the Respondent’s hotel in Waterford, which operates under the trading name of “Travelodge” owned by Smorgs (ROI) Management Limited and previously designated to Smorgs (Ireland) Limited on 1st January, 2003.

3.6 The respondent’s submissions on the jurisdictional issue can be summarised as follows:

· Any search of the Companies Registration Office will show Smorgs (ROI) Management Limited to be the owner of the registered business name “Travelodge”. Similarly, a search of the Business Names Register will reveal “Travelodge” to be a trading name of Smorgs (ROI) Management Limited. The onus on any complainant or moving party in proceedings, and indeed on their representatives, is to take ordinary and reasonable steps to ascertain the correct description and identity of the party against whom it is intended to claim. The failure of the complainant’s representative to establish the correct name of the Respondent cannot be said to be the fault of the Respondent in circumstances where an admitted search of the CRO was carried out but where the search was less than complete.

· The complainant was issued with documentation such as P60’s which included the company registration number of the respondent and had the Complainant’s representative carried out a proper search in the CRO using this information prior to referring the initial complaint she would have been in a position to identify the correct name of her employer.

· The complainant could have sought clarification from her employer regarding the correct legal identity of the Respondent prior to referring the present complaint. Such an enquiry could have taken the form of a letter from the Complainant or her representative simply seeking clarification as the appropriate entity to be named. The failure of the Complainant or her representative to take the said step of making an enquiry cannot be blamed upon the Respondent itself, who never received any correspondence or enquiry whatsoever from the Complainant’s representative. The suggestion by the Complainant’s representative that they are entitled to rely upon other cases involving completely different parties as a defence to their won negligence is without basis in fact or in law.

· The purpose of the Employment Equality Acts and the provisions contained therein for the extension of time within which to make a claim expressly require an animus or intention on the part of the Respondent to misrepresent the situation for the time to be extended. It is submitted that no such misrepresentation on the part of the Respondent could possibly exist in circumstances where the Respondent was never contacted by the Complainant or her representatives at any time following the incidents giving rise to the complaint. In essence, what the complainant’s representative seeks to rely on is their own mistake rather than the Respondent’s misrepresentation.

· The respondent disputes the complainant’s contention that she did not become aware until June, 2014 that Smorgs (ROI) Management and submits that she was in possession of a letter from the respondent dated 22nd December, 2011 (prior to the referral of the initial complaint to the Tribunal) which correctly identified her employer as Smorgs (Ireland) Limited. The respondent submitted that the complainant received correspondence from her employer in December, 2011 relating to an internal appeal hearing connected to the grievances giving rise to the present complaint which clearly indicated that “Travelodge” was a trading name of “Smorgs Ireland Limited”.

4. Conclusions of the Equality Officer on Jurisdictional Issue

4.1 It is common case that the alleged incidents of discrimination and/or victimisation which gave rise to the present complaint occurred during the period from September, 2011 to January, 2012. The complainant referred an initial complaint to the Director of the Equality Tribunal on 1st March, 2012 arising from these incidents against an entity named Travelodge Management Limited t/a Travelodge Waterford. It was not in dispute between the parties that this company was not the complainant’s employer at any time material to this complaint. The complainant claims that the error in relation to naming the incorrect employer in the initial complaint arose as a result of the respondent having misrepresented its true identity. The complainant submitted that that the correct legal identity of her employer, namely Smorgs ROI Management Limited, only came to light on 25th June, 2014. The complainant subsequently referred a new complaint to the Director of the Equality Tribunal against the aforementioned company on 17th December, 2014.

4.2 Having regard to the foregoing, it is clear that the present complaint has been referred outside of the time limits prescribed at section 77(5) of the Acts. Therefore, the only avenue left open to her, in terms of the Commission having jurisdiction to investigate her complaint, is to avail of section 77(6) of the Acts. This provision provides as follows:

"Where a delay by a complainant in referring a case under this section is due to any misrepresentation by the respondent, subsection 5(a) shall be construed as if the reference to the date of occurrence of the discrimination or victimisation were references to the date on which the misrepresentation came to the complainant's notice."

The effect of the provision is that the time-limit for referring a complaint to the Commission, in circumstances where the respondent has engaged in any misrepresentation, only commences when the complainant becomes aware of that misrepresentation. In order to avail of the provision the complainant must prove, as a matter of probability, that there was misrepresentation by the respondent and that the delay in referring his complaint is due to this misrepresentation.

4.3 The respondent has argued that the error in naming the correct respondent was wholly attributable to the complainant and/or her representative and it submits that this error could have been avoided if they had undertaken a proper search of the CRO website or sought clarification regarding the correct legal identify of her employer prior to referring the initial complaint to the Equality Tribunal. The respondent has strenuously argued that this mistake and the subsequent delay in referring the complaint against the correct legal entity were occasioned due to any misrepresentation on the respondent’s part.

4.4 In considering this issue, I note that the term “misrepresentation” is defined in Osborn’s Concise Law Dictionary as “A statement or conduct which conveys a false or wrong impression. A false or fraudulent misrepresentation is one made with knowledge of its falsehood, and intended to deceive. A negligent misrepresentation is one made with no reasonable grounds for believing it to be true”. I have had regard to the jurisprudence from the Irish High Court, the Labour Court and the Court of Justice of the European Union on the issue of misrepresentation and, in particular, I have taken note of the following case law. The Labour Court held in the case of the HSE –v- Tom Whelehan[1] that “The Court next considered the Complainant’s submissions regarding the applicability of s.77(6) of the Act. It appears to the Court that a misrepresentation, for the purpose of the subsection, can only occur where an employer makes some false representation to an employee concerning a material fact”.The Labour Court also held in the case of A Company –v- A Worker[2] that “In order to avail of the provision the complainant must satisfy the Court, as a matter of probability, that there was misrepresentation by the respondent and that the delay in referring his complaint is “due” to the “misrepresentation by the respondent.”.

4.5 In the case of Stafford –v- Mahony, Smith and Palmer [1980] ILRM 53, Doyle J laid down the criteria for the action of negligent misrepresentation as follows: “In order to establish the liability for negligent or non-fraudulent misrepresentation giving rise to action there must first of all be a person conveying the information or the representation relied upon; secondly, that there must be a person to whom that information is intended to be conveyed or to whom it might reasonably be expected that the information would be conveyed; thirdly, that the person must act upon such information or representation to his detriment so as to show that he is entitled to damages.

4.6 The issue of misrepresentation was also dealt with by the Court of Justice of the European Union in the case of B.S. Levez –v- T.H. Jennings (Harlow Pools) Limited[3] where it was held that “Community law precludes the application of a rule of national law which limits an employee's entitlement to arrears of remuneration or damages for breach of the principle of equal pay to a period of two years prior to the date on which the proceedings were instituted, there being no possibility of extending that period, where the delay in bringing a claim is attributable to the fact that the employer deliberately misrepresented to the employee the level of remuneration received by persons of the opposite sex performing like work.”.

4.7 In considering the alleged misrepresentation in the present case, I note that all of the employment related documentation (including the Statement of her Terms and Conditions of Employment, P.60’s, Payslips, and Income Levy Certificates etc.) provided by the respondent to the complainant prior to the referral of the initial complaint to the Equality Tribunal identified the name of her employer as either “Travelodge” of “Travel Lodge” (with the exception of the letter referred to above from the respondent to the complainant dated 21st December, 2011). In this regard, it is clear that an employer has a statutory obligation under Section 3(1)(a) of the Terms of Employment (Information) Act 1994 to provide its employees with the “full name and address” of their employer. However, in the complainant’s case, the respondent failed to include details of the correct legal identity of her employer in the Statement of Terms and Conditions of Employment issued to her following the commencement of her employment and instead included the trading name of the business. The respondent failed to provide any credible explanation regarding the reasons why the above-mentioned documents did not include the full and complete identity of the complainant’s employer. I have taken note of the evidence adduced by the complainant to the effect that the respondent has included the full and complete identity of her employer on payslips since October, 2014.

4.8 In the circumstances of the present case, I am satisfied that it is not unreasonable to conclude that the respondent was liable for negligent misrepresentation in terms of the information conveyed by it, and the representations it made to the complainant regarding the identity of her employer during the period of her employment prior to the referral of the initial complaint to the Equality Tribunal in March, 2012. I find that this misrepresentation by the respondent of its full legal identity contributed significantly to the error in naming the incorrect legal entity as her employer (i.e. Travelodge Management Limited t/a Travelodge Waterford) in the initial complaint referred to the Equality Tribunal. I am of the view that the respondent had ample opportunity following the referral of the initial complaint to inform both the Equality Tribunal and the complainant that the proceedings had been initiated against the incorrect legal entity. However, the respondent accepted these proceedings and continued to engage with the Equality Tribunal and the complainant without demur in relation to the initial complaint of discrimination for a period in excess of two years following the referral of that complaint and also in relation to separate complaints which the complainant had referred to the Rights Commissioner Service under the Maternity Protection Act 1994 and the Organisation of Working Time Act 1997. It is also noteworthy that a settlement was agreed between the parties in relation to the latter complaint and the settlement agreement recorded that it was an agreement between the complainant and “Travelodge Management Limited”.

4.9 In coming to this conclusion, I note that the complainant’s representative submitted a request for information (on the Form EE2) to the company on 30th June, 2014 relating to the initial complaint to the Equality Tribunal prior to the scheduled hearing of that complaint. The covering letter sent by the complainant’s representative clearly adverted to the fact that the hearing of the complaint was scheduled for 11th July, 2014. The complainant adduced evidence to confirm that this correspondence (which was sent by registered post) was received by the respondent and that a letter of reply was subsequently issued to her by the respondent’s General Manager on 25th July, 2014. In the circumstances, I am satisfied that this clearly implies the respondent was fully aware of the hearing date of the initial complaint. I note that this is totally inconsistent with the respondent’s stated position (at the oral hearing of the present complaint) that the reason it failed to appear at the initial hearing was because it had been unaware of arrangements for the hearing. Having regard to the foregoing, it is clear that the respondent had a further opportunity prior to the hearing of the initial complaint to signal the fact that the wrong legal entity had been identified as the respondent in those proceedings. However, the respondent failed to avail of this opportunity and in doing so it continued to hold itself out as the complainant’s correct employer. I am satisfied that the respondent’s actions in this regard clearly amounted to a misrepresentation of its identity within the meaning of section 77(6) of the Acts.

4.10 However, in order for the complainant to avail of the provisions of section 77(6) she must also be able to demonstrate that the present complaint was referred within the period of six months from the date that this misrepresentation came to her notice. In considering this issue, I accept the complainant’s evidence that she only became aware of the correct legal identity of her employer on 25th June, 2014 after information had been imparted to her in the workplace to the effect that there had been a transfer of undertakings relating to her employment. This information prompted the complainant’s representative to carry out further enquiries regarding the identity of her employer which resulted in it being established on the aforementioned date that she was employed by an entity called “Smorgs (Ireland) Limited”. Accordingly, I find that the complainant has established that the delay in referring the present complaint was due to misrepresentation by the respondent within the meaning of section 77(6) of the Acts and that she is entitled to delay the start of the time limit for the purpose of the referral of the present complaint until 25th June, 2014. Having regard to the fact that the present complaint was referred to the Equality Tribunal on 17th December, 2014, it is clearly within the prescribed time limit in section 77 and I therefore find that I have jurisdiction to investigate the complaint.

5. Summary of Complainant’s Case on Substantive Issue

5.1 The complainant submitted that she is a Polish national and commenced employment with the respondent as an Accommodation Assistant on 4th August, 2007. In September, 2008 the complainant secured a position on Reception which resulted in an increase in her hours. The complainant submitted that throughout 2009, 2010 and 2011 prior to maternity leave she worked shifts on Monday and Tuesday from 11 pm to 7 am, in addition to three day shifts with varying hours usually from 7 am to 3 pm, averaging 42.9 hours per week.

5.2 The complainant submitted that she commenced a period of maternity leave on 23rd March, 2011 and returned to work on 21st September, 2011. She submitted that her hours of work were reduced from an average of 42.9 hours per week to an average of 23.5 hours per week upon her return from maternity leave. The complainant acknowledged that her contract of employment stated that her normal hours of work were 24 hours per week. However, she claims that following a verbal agreement with the previous Manager it was agreed that she would be allocated “full-time hours” each week. The complainant submitted that she worked three day shifts per week prior to maternity leave whereas upon her return to work she was not allocated any day shifts (and this situation was not rectified until a new Manager commenced in April, 2013). The complainant also submitted that the respondent employed a new staff member from Cork to cover another employee on maternity leave when she was available to cover these shifts.

5.3 The complainant submitted that she raised concerns regarding these issues with the respondent’s HR Manager by way of e-mail on 29th September, 2011. The complainant had a meeting with her new Manager, Mr. A, on 3rd October, 2011 and he expressed annoyance at her for raising these issues with the HR Manager. The complainant submitted that Mr. A produced her contract and indicated that it specified her normal hours were 24 hours per week and stated that “this is all I have to give you”. The complainant replied that the 24 hours were the minimum hours and informed him that she had a verbal agreement with the previous Manager to work full-time hours during the three year period prior to her maternity leave. The complainant submitted that during this meeting Mr. A stated that “her English was not good enough to work days” to which she replied that she had been “working for three years and there was never a complaint”. The complainant also claims that Mr. A also stated that she had “been off for the last six months with your baby speaking Polish at home” and that she would need to spend more time with her baby. The complainant replied that she could speak both Polish and English and that her partner was looking after the baby. The complainant submitted that the latter remarks amounted to discriminatory treatment on the grounds of her family status and race.

5.4 The complainant submitted that she sent a letter to the HR Manager on 27th October, 2011 raising a formal grievance against Mr. A arising from the aforementioned issues. She claims that after making this complaint Mr. A came into work on his day off and was hostile towards her and indicated that he would be watching her on CCTV with a view to initiating disciplinary procedures against her. The complainant submitted that she attended a meeting with a representative from the company’s HR Department on 17th November, 2011 to discuss the grievances that she had previously raised in her formal complaint. The complainant received a written response to these grievances from the company on 29th November, 2011. The complainant submitted that she was not satisfied with response from the company and she wrote to the HR Manager on 19th December, 2011 to request an appeal in relation to her grievances. In this appeal letter the complainant again referred to the reduction in her weekly hours following her return from maternity leave, the unfavourable distribution of the more desirable shifts and the discriminatory comments which her Manager, Mr. A, had made during the course of their meeting on 3rd October, 2011 which she felt had not been addressed by the company. The complainant also informed the respondent in this letter that she felt she was being subjected to victimisation by Mr. A for raising these grievances.

5.5 The complainant submitted that this appeal was heard by the HR Manager on 10th January, 2012 and that she outlined and elaborated upon the issues raised in her grievance complaint at this hearing. The complainant explained to the HR Manager that she felt victimised by Mr. A since she had raised these grievances and referred to the fact that he had threatened her with using CCTV for disciplinary purposes. The complainant submitted that she subsequently received a letter from the HR Manager on 30th January, 2012 which confirmed that her appeal had been rejected and that her grievances had not been upheld.

5.6 The complainant submitted that she was called to a disciplinary meeting with her Manager, Mr. A and the HR Manager on the same day as the appeal hearing (i.e. 10th January, 2015) where it was alleged she had sold alcohol to non-residents. She claims that this arose as a result of Mr. A having trawled through CCTV footage and identifying a person getting out of a car in the hotel’s carpark and purchasing alcohol at the reception. The complainant submitted that disciplinary action was not taken against her in relation to this incident because she was able to prove that the person in question was a resident and that she had not breached the hotel’s procedures in relation to the sale of alcohol. The complainant submitted that this incident amounted to victimisation by Mr. A against her as he had previously threatened that he would be using CCTV footage for disciplinary purposes. The complainant submitted that the company raised a further issue with her at this disciplinary meeting on 10th January, 2012 in relation to her alleged failure to comply with new fire safety procedures. The complainant claims that she attempted to explain her concerns in relation to the new procedures but the respondent was dismissive of her explanation and she was subsequently issued with an informal warning letter by Mr. A in relation to this issue.

5.7 The complainant submitted that in January, 2012 the company advertised externally for a part-time worker to cover another employee on maternity leave and that this had been done when the complainant was in dispute with her employer over not getting her legal entitlement to have the same hours and shifts after returning from maternity leave in September, 2011. The complainant submitted that the company’s failure to respond to or carry out an adequate investigation of her complaints of discrimination and victimisation all adversely affected her dignity and she claims that this amounted to victimisation and harassment within the meaning of the Employment Equality Acts.

6. Summary of Respondent’s Case on Substantive Issue

6.1 The respondent submitted that it employs 160 people in its group of hotels in the Republic of Ireland with more than half of these employees being non-Irish nationals. The respondent submitted that the complainant was employed as a Receptionist on 4th August, 2007 and her contract of employment clearly stated that her normal hours of work were 24 hour per week. The respondent did not dispute that the complainant worked additional hours each week during the three year period prior to her maternity leave which commenced in March, 2011. However, the respondent submitted that the arrangement to work the additional hours over and above her normal contractual allocation had been agreed with her sister who was the Hotel Manager during that period of her employment. The respondent denies that the complainant was subjected to discrimination on the grounds of gender in relation to the number of weekly hours and type of shifts allocated to her following her return from maternity leave. The respondent submitted that she was always allocated at least 24 hours per week in accordance with the terms of her contract and additional hours were allocated to her depending on the business requirements of the hotel. The respondent also refutes the suggestion that a staff member was taken on to cover her during maternity leave and kept on after her return this reducing her working hours.

6.2 The respondent submitted that during the summer of 2011 a new manager, Mr. A, took over at the hotel where the complainant was employed. Mr. A was not present as an employee or manager when the complainant went on maternity leave earlier that year and only became familiar with her when she returned from maternity leave in late 2011. The respondent submitted that it was at a disadvantage in defending the present complaints in that Mr. A no longer works for the company and has since relocated to the United States. The respondent submitted it was aware that a history of animosity existed between Mr. A and the complainant as a consequence of the dismissal from his employment with the hotel of the complainant’s partner sometime earlier than the present complaint relate to.

6.3 The respondent submitted that it is appalled at the allegations and suggestions that any one of its employees would be the subject of comments about their proficiency or otherwise in the English language. The respondent accepts unreservedly that the complainant was working at the front office prior to her maternity leave and that there had never been an issue with her competency in English or her ability to communicate with customers at any time. The respondent submitted that it absolutely and unreservedly regrets any inferences which may have been drawn by the complainant from comments made to her by Mr. A and does not stand over his behaviour in this regard if the Adjudication Officer finds that she was indeed the subject of a comment or commentary of the nature alleged by the complainant.

6.4 The respondent denies that the complainant was subjected to victimisation or harassment by the company in relation to her having made a complaint against her Manager, Mr. A, regarding her hours of work after returning from maternity leave. The respondent submitted that the hotel is routinely requested by An Garda Siochana to review CCTV footage and, in fact, does so of its own accord on a regular basis. The respondent submitted that a circular was sent to members of staff in respect of the allegations that some staff members had been selling alcohol on an off-licence basis to persons who were not residents of the hotel. The hotel does not have an off-licence and therefore anybody to whom alcohol is sold must only and always be a person who is at that time staying in the hotel. The respondent contends that any steps taken to enquire into the selling of alcohol to non-residents was thoroughly warranted and arose out of legitimate concern in the hotel that the complainant and others may have been inadvertently selling alcohol to persons who were not residents. The respondent submitted that the matter involving the complainant was investigated and no further action was taken against her when it was established that the hotel’s policy on the sale of alcohol had not been breached.

6.5 The respondent submitted that a thorough investigation was carried out by its HR Manager in relation to all of the grievances raised by the complainant and it was established there was no evidence to suggest that she had been subjected to the discrimination, harassment or victimisation as alleged. The respondent strenuously denies that the complainant has been subjected to discrimination, harassment or victimisation within the meaning of the Employment Equality Acts.

7. Conclusions of the Equality Officer on Substantive Issues

7.1 The substantive issues for decision by me are as follows: (i) whether or not the respondent discriminated against the complainant on the grounds of gender, family status and race, in terms of section 6(2) of the Employment Equality Acts and contrary to section 8 of those Acts in terms of her conditions of employment following her return to work from maternity leave in September, 2011, (ii) whether or not the respondent victimised the complainant in terms of section 74(2) of the Employment Equality Acts and (iii) whether or not the respondent subjected the complainant to harassment contrary to section 14A of the Employment Equality Acts. In reaching my decision, I have taken into account all of the submissions, written and oral, made to me by the parties.

7.2 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 in relation to her. If she succeeds in doing so, then, and only then, is it for the respondent to prove the contrary. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of “sufficient significance” before a prima facie case is established and the burden of proof shifts to the respondent. In deciding on this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the complainant. It is only where such a prima facie case has been established that the burden of proving there was no infringement of the principle of equal treatment passes to the respondent.

7.3 Section 6(1) of the Employment Equality Acts, 1998 to 2011 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)…..”. Section 6(2)(a) of the Acts defines the discriminatory ground of gender as follows – “as between any 2 persons, ... that one is a woman and the other is a man". Section 6(2)(c) of the Acts defines the discriminatory ground of family status as follows – “as between any 2 persons, ... that one has family status and the other does not" and Section 6(2)(h) of the Acts defines the discriminatory ground of race as follows– “as between any 2 persons, ... that they are of different race, colour, nationality or ethnic or national origins".

Complaint of discriminatory treatment on grounds of Gender

7.4 The first issue that I must decide relates to the complainant’s claim that she was subjected to discrimination by the respondent in relation to her conditions of employment following her return to work after maternity leave in September, 2011. The case-law of the European Court of Justice makes it clear that any unfavourable treatment of a woman related to pregnancy or maternity constitutes direct discrimination on grounds of gender and this is incorporated into Irish law at section 6(2)(A) of the Employment Equality Acts, 1998 - 2008. Article 15 of the EU Directive on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (recast)[4] states that "a woman on maternity leave shall be entitled, after the end of her period of maternity leave, to return to her job or to an equivalent post on terms and conditions which are no less favourable to her....". It follows therefore that any departure from this entitlement constitutes direct discrimination of the woman concerned on grounds of gender.

7.5 In the present case the complainant has claimed that her hours of work were reduced and that she was allocated a less favourable shift pattern after her return to work in September, 2011 following a period of maternity leave. The complainant claims that she had been working an average of 42 hours per week over five shifts during the three year period prior to her maternity leave which commenced in March, 2011. The complainant accepts that the contract of employment which she signed following the commencement of her employment in August, 2007 indicated that her normal working hours were 24 hours per week. However, she claims that she had entered into a verbal agreement with her previous Manager which resulted in her being allocated the additional hours on a consistent and ongoing basis during the period from 2009 to 2011 prior to her maternity leave. The complainant contends that her working hours were significantly reduced and that she was not allocated any day shifts upon her return to work following maternity leave.

7.6 The respondent does not dispute that the complainant was allocated additional hours and shifts during this period but submitted that under the terms of her contract the company was only obliged to allocate her 24 hours per week. The respondent contends that the arrangement to work additional hours was put in place between the complainant and her sister who was the Hotel Manager at that juncture. The respondent submitted that the terms of the complainant’s contract were adhered to in full following her return from maternity leave and that she was allocated thereafter a minimum of 24 hours and up to 32 hours per week depending on the business requirements of the hotel.

7.7 In considering this issue, I am satisfied that the complainant gave extensive and credible evidence that her working hours were significantly reduced and that she was allocated a less favourable shift pattern following her return to work from maternity leave in September, 2011. The complainant’s oral evidence on this issue was corroborated with documentary evidence in relation to the number of hours and shift patterns that she was allocated both before and after this period of maternity leave. I note that the complainant’s contract of employment (which she signed in August, 2007) stated that her normal weekly hours were 24 hours per week. However, it is clear from the evidence adduced that the complainant had been working on average 42 hours per week (over two night and three day shifts) by arrangement with the hotel’s management during the three year period prior to her maternity leave. The respondent in its evidence adverted to the fact that this arrangement was made with the complainant’s sister who was the Hotel Manager during the period in question. However, the respondent has not adduced any evidence to suggest that this was an illicit arrangement or that the Manager, notwithstanding the fact she was the complainant’s sister, had been acting improperly in allocating these additional hours to the complainant.

7.8 The complainant also gave credible evidence that a person who commenced work as a Receptionist during her maternity leave was also retained in that role following her return from maternity leave. I am of the view that it was not unreasonable for the complainant to expect that she would return from maternity leave to the same number of working hours and shift pattern, which had become the norm through custom and practice, during the three year period prior to her absence. The respondent did not adduce any credible evidence to suggest that the reduction in the complainant’s hours was necessary for economic or business related reasons. Indeed, the only explanation proffered by the respondent for the reduction in the complainant’s hours following her return from maternity leave was the argument that it was only contractually bound to allocate her 24 hours per week. In light of the foregoing, I find that the complainant has established a prima facie case of discrimination on the grounds of gender and that the respondent has failed to rebut that inference. It follows therefore that the complainant is entitled to succeed in relation to this element of her complaint.

Complaint of discriminatory treatment on grounds of Race

7.9 The next element of the complainant’s complaint relates to a claim of discriminatory treatment on the grounds of race in relation to an incident at a meeting with her Manager, Mr. A, on 3rd October, 2011. The complainant has claimed that Mr. A expressed annoyance at her during this meeting for raising concerns over her allocation of hours and shifts following her return from maternity leave. The complainant claimed that Mr. A stated that her “English was not good enough to work days” and that she had “been off for the last six months with your baby speaking Polish at home”. The complainant claims that she was not allocated any day shifts for a period of eighteen months following this incident with her Manager. The respondent was not in a position to contradict the complainant’s account of her interaction with Mr. A at this meeting. The respondent confirmed that Mr. A no longer works for the company and is currently resident in the United States and therefore, he did not attend the hearing to give oral evidence on the matter. However, the respondent denies that the allocation of shifts to the complainant following her return to work from maternity leave was in any way influenced by her race.

7.10 In considering this issue, I wish to note that I am satisfied from the manner in which the complainant gave her oral evidence at the hearing that she has an excellent command of the English language. It is clear from the evidence adduced that the complainant had competently performed the role of Receptionist on day shifts for three years prior to her maternity leave. I note that the respondent acknowledged in evidence that there had been no issues with the complainant’s competency in the English language or her ability to communicate with customers. Having regard to the evidence adduced, it is clear that the complainant encountered a difficult working relationship with her new Manager, Mr. A, following her return from maternity leave in September, 2011 and that he took exception to her having raised concerns with senior management regarding the reduction in her working hours following her return from maternity leave. I have found the complainant to be a very credible and convincing witness and I accept her evidence that Mr. A, made the alleged remarks regarding her proficiency in the English language during the course of this meeting. In the circumstances, I find that the complainant was afforded less favourable treatment by her Manager, Mr. A, in relation to the allocation of shifts on grounds related to her race following her return from maternity leave. Accordingly, I find that the complainant has established a prima facie case of discrimination on the grounds of race and that the respondent has failed to rebut that inference. It follows therefore that the complainant is entitled to succeed in relation to this element of her complaint.

Complaint of discriminatory treatment on grounds of Family Status

7.11 The next element of the complaint that I must consider relates to the complainant’s claim of discriminatory treatment on the ground of family status which she claims also arose during the course of her meeting with meeting with her Manager, Mr. A, on 3rd October, 2011. The complainant claims that Mr. A said to her that “you will need to spend more time to mind the baby” and this was said in the context of justifying the reduction in her hours following her return from maternity leave. As I have stated, I have found the complainant to be a credible and convincing witness and I accept her uncontested evidence in relation to the conversation which took place with Mr. A on this occasion.

7.12 In A Government Department v An Employee (Ms. B)[5] the Labour Court took account of the decision in Nagarajan v London Regional Transport[6] in holding “that the proscribed ground need not be the sole or even principal reason for the conduct impugned; it is enough that it is a contributing cause in the sense of being a significant factor”.Having regard to the evidence adduced, I am satisfied that the fact that the complainant was returning from maternity leave and now had a young child significantly influenced Mr. A’s decision to reduce the number of hours which she had become accustomed to working prior to her absence. Accordingly, I find that the complainant has established a prima facie case of discrimination on the grounds of family status and that the respondent has failed to rebut that inference. It follows therefore that the complainant is entitled to succeed in relation to this element of her complaint.

Victimisation

7.13 The next element of the claim that I must decide relates to the complainant’s claim that she was subjected to victimisation contrary to the Employment Equality Acts following her return to work after a period of maternity leave. “Victimisation” is defined at section 74(2) of the Acts as "For the purposes of this Part victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to –

(a) a complaint of discrimination made by the employee to the employer,

(b) any proceedings by a complainant,

(c) an employee having represented or otherwise supported a complainant,

(d) the work of an employee having been compared with that of another employee for any of the purposes of this Act or any enactment repealed by this Act,

(e) an employee having been a witness is any proceedings under this Act or the Equal Status Act, 2000 or any such repealed enactment,

(f) an employee having opposed by lawful means an act which is unlawful under this Acts or the said Act of 2000 or which was unlawful under any such repealed enactment, or

(g) an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs".

7.14 The Labour Court has held in the case of the Department of Foreign Affairs –v- Patricia Cullen[7] that “This definition is expressed in terms of there being both a cause and an effect in the sense that there must be a detrimental effect on the Complainant which is caused by him or her having undertaken a protected act of a type referred to at paragraphs (a) to (g) of subsection (2). If either the cause or the effect is missing there can be no finding of victimisation within the statutory meaning”.Therefore, in order for the complainant to establish that she was victimised she has to establish that the adverse treatment she alleges occurred was a reaction to any one of the matters specified from (a) to (g) of section 74(2) of the Acts cited above. In the present case, it was not in dispute that the complainant raised a formal grievance with the respondent on 27th October, 2011 claiming that she had been subjected to discriminatory treatment by her Manager, Mr. A, in relation to her conditions of employment following her return to work and also signaling her intention to refer a complaint to the Equality Tribunal if the matter was not addressed. I am satisfied that these facts constitute a protected act within the meaning of Section 74(2) of the Acts.

7.15 The next issue I must consider is whether or not the treatment alleged by the complainant constitutes “adverse treatment” in terms of section 74(2) and if so, whether such adverse treatment was in reaction to having taken the protected act. The adverse treatment or detriment contended by the complainant are the alleged threats by Mr. A after she had raised these grievances with management that he would be watching her on CCTV with a view to initiating disciplinary procedures against her. The complainant contends that Mr. A not only made this threat but he also actually carried it out and brought the complainant to a disciplinary investigation meeting alleging she had sold alcohol to non-residents. As I have previously stated, I have found the complainant to be a reliable and credible witness and I accept her uncontested evidence that she was in fact subjected to these alleged threats by Mr. A during the course of their meeting after she had referred a formal grievance against him with the respondent.

7.16 I have also taken cognisance of the fact that the complainant raised concerns with the respondent that she was being victimised by Mr. A after she had raised a formal grievance against him on 27th October, 2011. In this regard, I note that the complainant raised this issue in an e-mail to the HR Manager on 19th November, 2011 (i.e. the e-mail requesting an appeal in relation to the respondent’s findings on her initial grievances) and again during the appeal hearing relating to her grievances on 10th January, 2012. Whilst I accept that the respondent carried out an investigation in relation to the alleged discriminatory treatment raised by the complainant regarding her conditions of employment, I am not satisfied that the respondent conducted any meaningful investigation into the complainant’s allegations of victimisation.

7.17 It was not in dispute that the complainant was called to a disciplinary investigation meeting by the respondent on 10th January, 2012 in relation to an incident where she was alleged to have sold alcohol to a non-resident. This disciplinary investigation was instigated by the respondent after Mr. A had identified the complainant, using CCTV footage, selling alcohol to a person who had driven into the hotel’s car park and purchased alcohol at the reception. I fully accept that the respondent is entitled to investigate any suspected breaches of its alcohol policy and I am very cognisant of the severe consequences that any breaches of this policy may have for the business. However, having regard to the evidence adduced, I am satisfied the investigation into this incident was initiated at the behest of Mr. A in response to the formal grievance which the complainant had made against him. In doing so, it is clear that Mr. A acted upon his threat to scrutinise CCTV footage with a view to initiating disciplinary action against the complainant. It subsequently transpired that Mr. A’s allegation was unfounded after the complainant established at the disciplinary investigation meeting o 10th January, 2012 that the person seen on the CCTV footage purchasing alcohol was a resident of the hotel. I am satisfied that the requirement for a formal disciplinary investigation into this matter could have been averted by the respondent in this instance if Mr. A had taken the opportunity to consult with the complainant to clarify the matter in the first instance rather than acting upon his threat to use the CCTV footage to initiate disciplinary proceedings against the complainant.

7.18 In the circumstances, I find that Mr. A’s behaviour amounted to adverse treatment of the complainant in terms of section 74(2) of the Acts and this adverse treatment was in reaction to the complainant having raised a formal grievance alleging discriminatory treatment. Accordingly, I find that the complainant has has established a prima facie case of victimisation and that the respondent has failed to rebut that inference. It follows therefore that the complainant is entitled to succeed in relation to this element of her complaint.

Harassment

7.19 The final element of the complainant’s claim that I must consider relates to her claim that she was subjected to harassment by the respondent. Having regard to the evidence adduced, I am satisfied that the complainant has not presented any evidence from which I could reasonably conclude that she was subjected to harassment contrary to Section 14A of the Acts. Accordingly, I find that the complainant has failed to establish a prima facie case of harassment within the meaning of Section 14A of the Acts.

8. Decision

8.1 Having investigated the above complaint, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts. I find that:

(i) The complainant has established that the delay in referring the present complaint was due to misrepresentation by the respondent within the meaning of section 77(6) of the Acts, and accordingly, that I have jurisdiction to investigate the complaint;

(ii) The respondent discriminated against the complainant in relation to her conditions of employment contrary to Section 8 of the Acts, on the grounds of gender, family status and race;

(iii) The respondent subjected the complainant to victimisation contrary section 74(2) of the Acts;

(iv) The respondent did not subject the complainant to harassment contrary to section 14A of the Acts.

8.2 It is well established that the redress ordered must be effective, proportionate and dissuasive. I therefore order, in accordance with my powers under section 82 of the Employment Equality Acts that the respondent pays the complainant:

(i) the sum of €21,000 being the equivalent of one year’s salary by way of compensation for the distress suffered and the effects of the discrimination, and;

(ii) the sum of €21,000 being the equivalent of one year’s salary in compensation for the effects of the victimisation.

This compensation does not contain any element of remuneration and is therefore not subject to PAYE/PRSI.

______________

Enda Murphy

Equality Officer/Adjudication Officer

9th March, 2016

Footnotes

[1] EDA0923

[2] EDA1027

[3] Case C-326/96

[4] Directive 2006/54/EC of 5 July, 2006

[5] EDA061

[6] [1998] IRLR 73

[7] EDA116