EMPLOYMENT EQUALITY ACTS 1998-2015
Decision DEC – E2016 – 047
PARTIES
Ms Julia Polonski (represented by Sarah Lea, B.L, instructed by Brophy Solicitors)
and
Cityjet Ltd. (represented by Paul Brady B.L., instructed directly by the respondent)
File Reference: et-150410-ee-15
Date of Issue: 9th March 2016
Keywords: gender – pregnancy – outside S. 77(5) time limits – no jurisdiction – family status – constructive dismissal, either discriminatory or victimisatory – An Employer v. A Worker (Mr O)(No. 2) [EED0410] – when should a worker be allowed to rescind a resignation - Charles Shinkwin v. Donna Millett[EED044] and Kwik-Fit (GB) Ltd v. Mr G Lineham[1991 UKEAT 250_91_2410] – limits of duty of employers to go behind reasons for a resignation.
1. Claim
1.1. The case concerns a claim by Ms Julia Polonski that Cityjet Ltd discriminated against her on the ground of family status contrary to Section 6(2)(c) of the Employment Equality Acts 1998 to 2011, in terms of discriminatory dismissal and other discriminatory conduct. The complainant also complains of victimisation contrary to S. 74(2) of the Acts.
1.2. The complainant, through her solicitor, referred a complaint under the Employment Equality Acts 1998 to 2011 to the Director of the Equality Tribunal on 3 November 2014. A submission was received from the complainant on 19 August 2015. A submission was received from the respondent on 12 October 2015. On 2 December 2015, in accordance with his powers under S. 75 of the Acts, the Director General delegated the case to me, Stephen Bonnlander, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director General under Part VII of the Acts. On this date my investigation commenced. As required by Section 79(1) of the Acts and as part of my investigation, I proceeded to hold a joint hearing of the case on 4 March 2016.
2. Summary of the Complainant’s Written Submission
2.1. The complainant submits that she worked for the respondent as cabin crew from 17 October 2007, initially on a fixed term contract, then, from April 2008, on a permanent contract.
2.2. In February 2013, the complainant was working in an accounts role, following medical advice in connection with her pregnancy. She commenced her maternity leave on 20 April 2013. She states that by letter dated 20 August 2013, she was informed by the respondent’s HR department that her maternity leave would cease on 19 February 2014 or on 12 June 2014 if she availed of additional maternity leave. The letter also stated that failure to give the required notice or failure to return to work on the agreed date would be an indication that the complainant did not intend to return to her job. The complainant submits that this show that the respondent clearly envisaged that she would not return to work.
2.3. The complainant further submits that due to difficulties with her line checker, Ms. K., regarding her return to work and her terms and conditions of employment, she had no option but to resign her employment. She was particularly concerned that the number of overnights required of her. She states that this could be up to six days in a row, which was different from her previous terms and conditions and caused her difficulty as the mother of two young children.
2.4. The complainant states that the respondent did not provide any assurances or accommodations to her and was not willing to countenance any flexibility. According to the complainant, the respondent also failed to acknowledge that there was an alteration in the complainant’s terms and conditions of employment as cabin crew, and that these were to her detriment as a working mother. The complainant resigned her employment on 9 May 2014. She then sought to retract her resignation on 23 May 2014, but the respondent did not accept this.
2.5. The complainant submits that this amounts to discrimination on the ground of gender pursuant to the provisions of the Employment Equality Acts, and in particular, that her resignation ought to have been void pursuant to S. 23 of the Maternity Protection Acts. In the alternative, she submits that the respondent’s refusal to let her retract her resignation amounts to victimisation within the meaning of the Acts.
3. Summary of the Respondent’s Written Submission
3.1. The respondent denies discriminating the complainant as alleged or at all. It submits that the letter in question is a form letter which goes out to all employees on maternity leave. It further denies that the complainant’s roster and terms and conditions of employment were ever altered beyond normal business exigencies. With regard to the complainant’s resignation, it insists that the complainant was contacted twice after her resignation, which would have given her an opportunity to retract same. It submits that by the time the complainant sought to retract her resignation, too much time had elapsed to make it practicable to reverse the process.
3.2. The respondent further notes that by the complainant’s own evidence, she never raised the issues which she said led to her constructive dismissal, with the respondent. In particular, it states that it was never informed by the complainant that she believed her terms and conditions of employment had been altered in an unacceptable manner.
3.3. With regard to the complainant’s argument pursuant S. 23 of the Maternity Protection Acts, counsel for the respondent requested of me in a supplemental submission that I should stay the proceedings and refer this matter to the High Court for clarification.
4. Conclusions of the Equality Officer
4.1. The issue for decision in this case is whether the complainant was discriminatorily dismissed within the meaning of the Acts.
4.2. In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to S. 85A of the Acts. 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.
4.3. In coming to my decision, I have considered all oral and written evidence presented to me by the parties.
4.4. First, the case on hand has been brought under the Employment Equality Acts 1998-2011, and I therefore have no jurisdiction to examine the facts in light of the provisions of the Maternity Protection Acts, or case law pertaining to them. Counsel’s application is therefore moot.
4.5. Second, I am satisfied that the original complaint form, while not a statutory form, makes no mention whatsoever of pregnancy-related discrimination. The box ticked on the form is “family status”, and the only detail provided is as follows: “I was unfairly [sic] dismissed while on a period of protected leave”. Accordingly, I am satisfied that the earliest date a gender discrimination complaint was brought to the Tribunal was 19 August 2015, more than twelve months after the employment relationship ended. This places the complainant’s complaint of gender discrimination squarely outside of the time limits specified in S. 77(5) of the Acts, and I therefore have no jurisdiction to investigate same.
4.6. I will therefore examine the complainant’s complaint with regard to her family status. I will first examine whether her resignation can be considered a constructive dismissal on this ground.
4.7. S. 2(1) of the Acts specifies that
“dismissal” includes the termination of a contract of employment by the employee (whether prior notice of termination was or was not given to the employer) in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled to terminate the contract without giving such notice, or it was or would have been reasonable for the employee to do so, and “dismissed” shall be constructed accordingly.
4.8. The Labour Court, in the case An Employer v. A Worker (Mr O)(No. 2) [EED0410], has addressed the issue of constructive dismissal under the Acts comprehensively. It set out the main applicable tests, these being the “contract” test and the “reasonableness” test, and held that these tests may be used either in combination or in the alternative. There was absolutely no evidence adduced by the complainant of an alteration or violation of the complainant’s contract on the part of the respondent. I therefore find that in the case on hand, the reasonableness test is the relevant one. This test asks whether the employer conducts its affairs in relation to the employee so unreasonably that the employee cannot fairly be expected to put up with it any longer. What can be regarded as reasonable or unreasonable depends on the circumstances of each case. However, it is an important element of the reasonableness test that the employer has an opportunity to address an employee’s grievance or complaint.
4.9. I am satisfied in this case, both from the written evidence adduced by the complainant, as well as her direct evidence, that she did not notify the respondent of her difficulties in terms of child minding arrangements either prior to her resignation or in her resignation email. In that email, the complainant only speaks of “personal circumstances”. The respondent put forward, and the complainant accepted, that the company offers a variety of options for workers with young children, including part-time rosters and role changes, for example changing from a flying role to an office-based role. Apart from the fact that the provisions of the Employment Equality Acts themselves do not provide for a right to accommodation at work on the ground of family status, it is clear from all evidence that the complainant did not approach the respondent at any time to seek such a solution for herself, even though she was aware they were available. This was even though she was an employee held in high regard in the respondent company, as was confirmed by the respondent.
4.10. I therefore find that the complainant’s resignation cannot be regarded as a discriminatory constructive dismissal within the meaning of the Acts. For similar reasons, her resignation cannot be regarded as a victimisatory constructive dismissal, either. S. 74(2) of the Acts requires, for adverse treatment up to dismissal to be victimisatory, that it be preceded by a complaint of, or lawful resistance to, discrimination. Nothing in the complainant’s written or oral evidence pointed to any such conduct on her part. Neither did the complainant adduce any other evidence of victimisation as defined in the Acts. Her complaint of victimisation must therefore fail.
4.11. Counsel for the complainant argued that the discriminatory act was the respondent’s refusal to accept the withdrawal of the complainant’s resignation. It became clear in the course of the evidence that the respondent would have been happy to re-hire the complainant, on the same contract, but that her break in service would have meant loss of seniority and the associated privileges. As noted before, there was no dispute that the respondent regarded the complainant highly, and I am satisfied that the respondent did not want to be rid of her. Any potentially less favourable situation in which the complainant found herself is limited to her loss of seniority.
4.12. Counsel for the complainant argued that resignations tendered in the heat of the moment, especially orally, ought to be retractable when a cooler state of mind prevails again. She argued that the complainant was under great stress as she had had a medically difficult pregnancy, had split up with her partner and was worried about her childminding arrangements as a newly single mother. Case law referred to included the Labour Court decision Charles Shinkwin v. Donna Millett [EED044], and the UK EAT decision Kwik-Fit (GB) Ltd v. Mr G Lineham[1991 UKEAT 250_91_2410], on which the former is based. Both are unambiguous that where a resignation is tendered “in the heat of the moment”, especially when tendered orally and perhaps in the context of an argument or other interpersonal clash, an employer ought to allow the worker to rescind it. The Labour Court in Shinkwin v. Millett adopted the reasoning in Kwikfit, that
Words may be spoken or actions expressed in temper or in the heat of the moment or under extreme pressure (being jostled into a decision), and indeed the intellectual makeup of the individual may be relevant.
The Labour Court, in Shinkwin v. Millett, was also guided by the academic Dr Mary Redmond, in her book on Dismissal Law, where Dr Redmond includes an individual’s state of health in the reasons not to accept a resignation at face value. Chairman Mr Duffy then added his own reasoning to these authorities, namely that
An employee may make a decision which is not fully informed because they are not in a position to fully evaluate their options or they may act on a misinterpretation of something that is said or done.
Counsel for the complainant argued that her client was in or close to a state of mental incapacity when she tendered her resignation.
4.13. None of the evidence adduced by the complainant supports any of the positions set out in the case law. The complainant was clearly aware that the respondent accommodated workers with family status. The complainant resigned in writing, and did not seek to argue that any dispute with the respondent preceded her resignation. Her resignation email is very clear and cogent and would not give anyone reading it an indication that she was in or close to a state of mental incapacity. It reads in full:
Dear [manager’s name],
Please accept this letter as notice of my resignation from the position of cabin crew at Cityjet.
Although my employment contract states a required notice period of nine weeks, I would like to resign with immediate effect due to personal circumstances.
I hope I am not causing too much inconvenience with such a short notice.
I have enjoyed being a part of the team and am thankful for the opportunities you have given me during my time here. I hope I can rely on you for a positive reference in future.
Yours sincerely,
Julia Polonski
4.14. The complainant herself was clear in her evidence that her attempt to rescind her resignation had nothing to do with being able to think about her decision more clearly, but with the fact that she had, against her previous expectations of what her situation as a single mother would be, succeeded in arranging childcare. I should also note that the complainant sent her resignation email on 9 May 2014 and sought to rescind it some two weeks later. From the evidence it is clear that the respondent only sent its formal acceptance letter on 19 May 2014, some ten days later, which would have been more than enough time for the complainant to inform the respondent about her change of mind if the situation envisaged in the case law had pertained. The complainant sought to rescind her resignation on 27 May 2014.
4.15. Ms M from the respondent’s HR department explained to the complainant in an email dated 29 Mary 2014 that her resignation had been completely processed, and that to return to work with the respondent, she would have to be re-hired. It is clear from all the evidence that the respondent was willing to do this.
4.16. Counsel for the complainant also sought to establish an obligation on an employer to make enquiries whenever a worker resigns, but I am satisfied that except for workers with disabilities, and the specific situations described in the case law cited above, there is no obligation in the Acts or in case law which could be so construed. Ms M also stated, in cross-examination by counsel for the complainant, that when an employee resigns for personal reasons, she does not seek to go behind such a statement as a matter of policy, since this would mean to pry into a worker’s personal circumstance. I concur with Ms M’s reasoning on this point in terms of overall good HR practice. It is worth repeating that there was nothing in the tone or form of the complainant’s resignation which would have caught the attention of any reasonable recipient, or given rise to a suspicion in such a person that the complainant was not in a fit mental state to make her decisions, or that she acted in the heat of the moment as outlined in the precedent cases cited.
4.17. Finally, counsel for the complainant sought to allege that the respondent did not allow the complainant to rescind her resignation because it knew she was a new mother. However, there is absolutely nothing in the evidence adduced which supports such a contention. The respondent had roles and work-life-balance options to accommodate workers with family status, over and above its obligations under the Employment Equality Acts, and would have been happy to re-hire the complainant, regardless of her family status. I accept the respondent’s evidence that the need to re-hire the complainant arose from the fact that her resignation had been fully processed, and that this was unconnected to her family status.
4.18. For all of these reasons, the complainant’s case must fail.
5. Decision
5.1. This decision is issued by me following the establishment of the Workplace Relations Commission on 1st October 2015, as an Adjudication Officer who was an Equality Officer prior to 1st October 2015, in accordance with section 83(3) of the Workplace Relations Act 2015.
5.2. Based on all of the foregoing, I find, pursuant to S. 79(6) of the Employment Equality Acts 1998-2015, that Cityjet Ltd did not discriminate against, or discriminatorily or victimisatorily dismiss, Ms Julia Polonski on the ground of family status contrary to S. 8 of the Acts.
______________________
Stephen Bonnlander
Equality Officer
9 March 2016