ADJUDICATION OFFICER DECISION

 Adjudication Reference: ADJ-00015034

Complaint(s):

Date of Adjudication Hearing: 30/11/2018

Workplace Relations Commission Adjudication Officer: Gerry Rooney

Procedure:

In accordance with Section 79 of the Employment Equality Acts, 1998 - 2015, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Background:

The Complaint, a Polish National, submitted that she was discriminated on the grounds of gender as she was denied access to employment due to being pregnant. The Respondent denied the allegation of discrimination.

Summary of Complainant’s Case:

The Complainant submitted that she applied for the vacancy of a Housekeeper a the respondents Hotel through an online job site and she was called for interview on 14th March 2018. The Complainant maintained that she was interviewed and the interview went well and she was given a starter pack of documentation to be filled out and asked to return to the Hotel on 19th March 2018.

When she returned to the hotel on 19th March 2018 she met with the Accommodation Manager, presented her pack, and maintained the conversation went well. The Complainant was offered the job at that stage and she was brought through a joining process. During this process she was asked to complete a fingerprint identification process for the time clock. As she was brought to the area for the finger printing, in a hallway behind the Reception, she alleged that the Accommodation Manager asked her to take off her jacket but she did not want to do so as she was not too warm. The Complainant maintained that the Accommodation Manager then asked her if she was pregnant. The Complainant admitted she was pregnant as she was 6 months pregnant at that stage.

The Complainant submitted that when she disclosed she was pregnant the Accommodation Manager became very unhappy and asked the Complainant why she was lying, that she was supposed to report she was pregnant, that she had lied, and that she should not have behaved in that manner.

The Complainant maintained that the Accommodation Manager left the area at that stage and closed the door in the Complainant’s face without saying anything. The Complainant was left standing there and the finger printing process had not been completed. As she was left standing there she remained for about two minutes, and then left because of the way she was treated. She joined her husband in the car park who confirmed she was crying about what had happened.

The Complainant maintained that as she was told she was lying she understood that she would not get the job because she was pregnant. The Complainant submitted that she did not contact the Respondent after the incident, nor did she get a call from the Respondent. She advised that there were two calls on her phone after the event but that she did not recognise the number and therefore did not answer the calls.  

The Complainant submitted that the Respondent had offered her the job after she had submitted an ES1 form on 12th April 2018, and had also offered her a job after her complaint to the WRC was submitted.

The Complainant advised that due to the manner she was treated as a result of her pregnancy she could not work for the Respondent.

Summary of Respondent’s Case:

The Respondent acknowledged it shortlisted the Complainant’s online application and the Complainant was interviewed by the Accommodation Manager on 14th March 2018. The Complainant had interviewed well, she was offered the job, was provided with a starter pack to complete, and was asked to come back on 19th March 2018.

When the Complainant returned on 19th March 2018 she was met by the Accommodation Manger who went through her documentation and then brought the Complainant down to a hall behind the reception for fingerprint recognition. In the meantime, the HR Administrator set up the Complainant on the payroll system and a contract of employment was drafted. When they got to the hall where the finger printing was to be completed the Accommodation Manager suspected the Complainant was pregnant and asked her as if she was pregnant as a Health and Safety Risk Assessment would be required. This assessment was needed to address any risks in light of the heavy lifting and handling of chemicals that is required in the performance of the housekeeping duties. The assessment would be required to safeguard the mother and baby. The Respondent submitted that it conducts this process with all pregnant employees.

The Accommodation Manager denied that she accused the Complainant of lying, or that she was annoyed with her. The Respondent maintained that the Complainant had completed the health and safety part of the starter pack but had not indicated any issues. However, as it became known to the Respondent at that time that the Complainant was pregnant a health and safety assessment would be required. The Accommodation Manager submitted that she told the Complaint that she would have to go to HR about that, and at that stage the Accommodation Manager left to speak to HR about the need for a health and safety assessment. The Accommodation Manager could not complete the finger printing process until the assessment was completed. The Accommodation Manager advised that her visit to HR took only a few minutes and when she returned to the area she could not find the Complainant.

The Accommodation Manager assumed the Complainant had left at that stage, so she rang the Complainant twice from her mobile number. Evidence was provided that confirmed two calls were made to the Complainant but were not answered. As the Accommodation Manager got no response she assumed the Complainant no longer wanted the job. The HR Manager in her evidence at the hearing confirmed this sequence of events.

Matters were then left until the Respondent received an ES 1 form complaining of discrimination. The Respondent then wrote to the Complainant on 27th April 2018, explained what had happened outlining to the Complainant that as the Complainant had left the hotel that day and attempts were made to contact her that were not returned it was assumed she did not want the job. At this stage the Complainant offered the Respondent the job again. This was rejected by the Complainant in a response letter on 9th May 2017. The Respondent again wrote to the Complainant on 29th May 2018 advising the Complainant that the job remained open to her until 4th June 2018. The Complainant again refused to take up the job offer.

The Respondent denied that it had discriminated against the Complainant because she was pregnant and maintained that it was the Complainant who drew a wrong conclusion about the Accommodation Manager’s intentions on 19th March 2018. As the Complainant had left and had not returned the Accommodation Manager calls, and had rejected its job offer once it realised what had happened it submitted that it had not acted unreasonably.

Findings and Conclusions:

The Employment Equality Act 1998 as amended, defines under S6 that discrimination shall be taken to occur when 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) (in the Act referred to as ‘discriminatory grounds’). With reference to the case within, the discriminatory groundis where one is a woman and the other is a man(in this Act referred to as “thegender ground”). As the Complainant was pregnant she maintained she was discriminated.

In addition, Section 8(1)(a) of the Act, an employer shall not discriminate in relation to access to employment.

Section 8(5) of the Act states: Without prejudice to the generality of subsection (1), an employer shall be taken to discriminate against an employee or prospective employee in relation to access to employment if the employer discriminates against the employee or prospective employee—

• in any arrangements the employer makes for the purpose of deciding to whom employment should be offered,

• by specifying, in respect of one person or class of persons, entry requirements for employment which are not specified in respect of other persons or classes of persons, where the circumstances in which both such persons or classes would be employed are not materially different, or

• by publishing or displaying, or causing to be published or displayed, an advertisement which contravenes section 10(1) in so far as such advertisement relates to access to employment.

Having considered the evidence presented I found the Complainant to be very genuine in her belief that the Accommodation Manager had reacted negatively to her pregnancy, and had left her at that point. However, I find the Respondent’s evidence to be credible in that the Accommodation Manager when realising the Complainant was pregnant told her she would have to have a health and safety assessment and that the Accommodation Manager would have to refer this to HR, which she did.

It is clear that the Respondent left the hotel within minutes of the Accommodation Manager going to HR, and when the Accommodation Manager returned within minutes she could not find the Complainant. Evidence was provided that the Accommodation Manager tried to contact the Complainant but the Complainant acknowledged she did not answer the calls as she did not recognise the number. It appears to me to have been an unfortunate misunderstanding by the Complainant about what had happened, and it is likely some of the misunderstanding was due to language between the parties, both of whom are non-native English speakers. Furthermore, the Respondent offered the Complainant the job once it was aware of what happened, but the Complainant rejected this offer on two occasions.

I therefore do not find that the Respondent was in breach of Section 8(5) of the act and I do not find that the Respondent put any arrangements or requirements in place that amount to discrimination against the Complainant in her access to employment.

Decision:

Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.

As I have not found that discrimination on the gender ground has occurred I do not find in favour of the Complainant. I therefore decide that the complaint fails.

Dated:   12/12/2018

Workplace Relations Commission Adjudication Officer: Gerry Rooney

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