ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00009974

Parties:

Complaint:

Date of Adjudication Hearing: 6th December 2017

Workplace Relations Commission Adjudication Officer: Seán Reilly

Procedure:

In accordance with Section 41 of the Workplace Relations Act 2015, Section 79 of theEmployment Equality Acts 1998 andfollowing 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 Complainant was employed by the Respondent from 15th May 2017 to 4th August 2017 and her weekly rate of pay was €203.50c.

The Complainant had submitted that she was discriminated against by the Respondent on the grounds of her age and gender and that she was harassed by the Respondent on the same grounds in breach of her rights and entitlements under the Employment Equality Act 1998 and the Respondent was denying the complaints

Summary of Complainant’s Case:

The Complainant said she commenced employment with the Respondent on 15th May 2017 as a Sales Assistant.

The Complainant said that from the onset things were wrong, when her contract of employment stated her start date was Tuesday 16th May 2017, but when she called into the Store to enquire about her work hours for that week she was told they did not know and that someone would call her.   She said that on the following day she received a voicemail in which she was informed that she was starting on Monday 15th May 2017 and not as stated in her job offer email.  

The Complainant did start on Monday 15th May, she asked her named Manager why she was starting a day earlier and the Manager said that the Complainant had telephoned the Store and indicated she could start on the Monday.   The Complainant said that this was something that she did not do; however she chose not to argue the point with her being a new employee and not wanting to start on the wrong foot.

The Complainant said that during her first week of employment it became obvious that no one was going to sit down and explain her terms and conditions of employment to her.   She said that she had to ask where and when she would get pay statements.   She said that it also became apparent that information was not going to be passed on to her.   She said that mostly she started at around 11 or 12 o’clock and so was never present at the morning meetings (which took place earlier in the mornings) and so she never knew what was discussed or of any changes being made unless a fellow employee mentioned it to her and she said that at times the information received by her was conflicting and she found herself to be confused.

She said that she again spoke to the named Manager, who she said told her that she was not receiving conflicting information at all.   She said that she tried to explain what she meant, but that again she was fobbed off and was made to feel silly for asking.

The Complainant said the following week things were not any better.   She said that the named Manager barely spoke to her at all and she felt really uncomfortable when she had to approach to ask her a question; that she would not even lift her head or turn around to speak to her, but she would answer to say we will discuss it, about whatever matter she asked about.   The Complainant said that she carried on as best she could asking other employees for help when she needed it.  

The Complainant said that she was approached by another named Manager while at the till that week, she said it was very busy and customers kept asking for sizes to be checked.   The Complainant went to an unused till as she was told to in such situations and did what the customers asked.   The named Manager asked her why it was that every time she looked up that day the Complainant was at the till.   The Complainant explained why as she was told to stand at the other side of the till and wait for a till operator to become free if she needed a size checked, while every other employee was able to check the sizes themselves and the Complainant found this upsetting.   The Complainant said later that day, again the Store was busy and the telephone was ringing.   She said that as no other employee was available she thought she was helping by answering and found out all the caller wanted to know, including locating a dress described by her.   She said that again, the same Manager asked her why she was answering the telephone.   The Complainant explained why, the Manager took the telephone from her and stated in front of other employees that the Complainant was not to answer the telephone as she was not experienced enough. The Complainant said that she was so upset that she had to leave the shop floor for a few minutes.

The Complainant said that on 29th May 2017, she was at home on a weekly day off when she received an email from yet another named Manager, stating that she was on an unauthorised absence from work.   She said that she was shocked and upset at this as she had checked the rota on more than one occasion and she had her days off and hours noted down and she knew she was not supposed to be at work.   The Complainant replied to the email stating that it was indeed her day off and sent a photo she had taken of the rota to keep herself right.   The Complainant said she received no reply, so she emailed again the following day asking what was happening with her employment as she was worried sick.   She said that she received a reply stating she looked forward to seeing her back at work on Thursday, with no apology or explanation.   The Complainant said that she was actually nervous about returning to work that week.

The Complainant said that she returned on the Thursday (1st June) and apologised to her (first named) Manager about the mix up while on the shop floor.   The Manager just said that she would chat to her later about it.   Later that day this Manager called the Complainant into the Office and the Complainant again apologised, as she would never not turn up for work.   The Manager said that she appreciated the Complainant’s apology and that she could not remember changing the rota and once again no explanation was given to the Complainant.   The Complainant felt that she was being blamed for something that clearly was not her fault.   She said that while in the Meeting she was told she does not wear enough make-up and that her shoes were too flat.   She said that there are many females on the shop floor who were wearing flat shoes and no make-up.   At this point the Complainant felt she was just being picked up for every little thing.

The Complainant said that from that day on it was clear that she was an unwanted employee and her job became hard to do.   She carried on doing her job to the best of her ability.   She said she had given up at that point asking for help as she felt it was unless.

The Complainant said that on the week beginning 5th June 2017, she got a bad sinus infection.   She said she carried on working all her shifts for that week, but on Monday 12th June I had to visit her doctor as her condition had become so bad.  

She said that she called her Manager first thing that morning to inform that she was calling in sick, was attending the Doctor and would let the Manager know the outcome.   On attending her Doctor she was given a sick certificate for one week, which she promptly handed in to the Respondent.   She said that she emailed two named managers on 19th June 2017, to let them know she would be returning to work the next day as she was feeling better, but again she received no reply.

The Complainant said that from that day on her work was becoming unbearable, she turned up for work one afternoon to be told that she was not to be in work that day, that it was the next day.   She said that she had checked the rota many times and once again she had a ‘photo of it and she said that not one person ever mentioned that it had been changed.

The Complainant said that on 11th July, she was called into a Meeting with two named managers and was told that her 3 month probation was being extended by another month due to her attitude to senior staff.   She said this was because she had told them she was doing things the way she was shown things and that she was in no way cheeky with her reply or indeed had an ‘attitude’ and that if she had been shown things from the outset this never would have happened.   She was assured at the Meeting that this was in no way connected to her non-appearance at work one days, but again no apology was given or blame taken for this and it was in no way connected with her being off sick for a week.   However the Complainant said she feels that both of these contributed to her extended probation and that ‘attitude’ was simply an excuse to do so.   The Complainant said that she was not given the official letter stating the probation extension for over a week and was then told to give it back as the name was wrong and it was another few days before she got the right letter.   She said that in the letter it states she has a minimum notice of 4 weeks when in fact her contract of employment it states 2 weeks notice.

The Complainant said that on 21st July, she was again approached by a named Manager on the shop floor telling her off about her hair colour.   She said that she had lightened her blonde, the Manager reckoned that it was pink.   The Complainant explained that she had just lightened it and it would take a few washes to settle down.   She said that the Manager asked her why she had no make-up on that day or the day before.   The Complainant explained that she got bad sunburn on her face and could not put any make-up over it, the Manager remarked that the Complainant needed to do something with it.   The Complainant said that she felt really embarrassed on the shop floor being picked on again.   She said that throughout the Store there many people with many hair colours and that it is unfair to pick on one person.

The Complainant said that the final straw came on 4th August 2017, when they were told to change uniform from the usual navy dress to black.   She said that she only found this out because one of her colleagues told her and management did not relate any of this information to her.   She said that again she had to ask her Manager what was suitable to wear. She said that she came into work that day as usual wearing a black dress, tights and flat shoes.   She said that she was there 15 minutes, when her Manager approached her and stated her dress was way too short; the Complainant said that it was knee length and was actually longer than many of the navy dresses provided for uniform. The Complainant said she replied that she did not think it was too short at all.   She said the Manager told her couldn’t let her wear that and she would have go home and change.

The Complainant said that she felt awful, very embarrassed and very upset and she just gathered her belongings, left the building, sat in her car and cried.   She said that all the months of being picked on and effectively bullied at work had taken its toll on her.   She said that there were younger females on the same shop floor with very short skirts/dresses on that day they had worn previously, but they were never told to stop wearing them.

The Complainant said that she typed a resignation to a named Manager along with the reasons for her resignation and she emailed it to the Manager.   She said that she received no response until she got a letter dated 8th August acknowledging her resignation.

The Complainant said that the main points of her complaints under the 1998 Act were:

Nowhere in her contract of employment or in the Employee Handbook does it state that she must wear make-up or a heeled shoe.   She said that she was being unfairly singled out in this.   She said that she turned up to work every day clean and well presented, and she feels that no company or individual has the right to put a person down at every occasion when they are following the dress code as stated in the contract of employment.   She said that it can’t be one rule for one and one rule for another.   She said that some females on the shop floor do not wear make-up and others wear flat shoes, no different from the ones she wore.   The Complainant said that there are also men working in the Store and they don’t have to wear make-up or heeled shoes, and she queried why it should be different for female employees.

The Complainant said she also feel she was singled out with regard to carrying out day-to-day tasks; for instance others were allowed to enter the till area, check sizes, stand with customers at the till and she never witnessed anyone else apart from herself being told off for doing so.   She said that this made her feel very dismayed and on more than one occasion her customer left as they got tired of waiting for her to check their size waiting on another employee to be free to do this for her.

The Complainant said that it was also stated in the Employee Handbook that all team members would be given manual handling training.   She said that she was not offered this, but she was expected to carry large bundles of heavy clothing, large boxes of hangers, pulls heavy rails full of clothing.   She said that again she felt that she was just left out and she felt that she was just an insignificant employee.

The Complainant said that she feels that in general she was bullied out of her job, which apart for being picked on regularly, she really enjoyed.   She said that any official documentation regarding meetings, probation, resignation, sickness etc., took ages to get to her, her emails were never replied to, or if they were it was days later.   She said that it makes you feel very unimportant and it was soul destroying.   She said that information was never relayed to her, she had to ask questions all the time and her work colleagues noticed that she was being singled out and bullied.   The Complainant said that the Respondent cannot have a large store with different rules for each person, there was no equality, and as a result she had a terrible working experience that has upset her and as result she has not returned to employment for fear of it happening again.

Based on the foregoing the Complainant submitted that her complaints under the Employment Equality Act were well founded and they should be upheld.

Summary of Respondent’s Case:

The Respondent was denying the complaints.

The Respondent submitted that no discrimination as alleged because of age and/or gender occurred and the Complainant was not harassed and/or victimised by the Respondent.   They said no prima facie case has been established by the Complainant and that all procedures used during her employment were fair and reasonable.

The Respondent they are a retail outlet and they employ 187 people.

The Respondent said the Complainant was employed by them as a sales assistant from 15th May 2017 until her resignation by email on 4th August 2017, a period of 11 weeks.

The Respondent said that the Complainant was interviewed on 5th May 2017 the job offered to her was confirmed on 8th May 2017.   On 9th May the named HR Manager forwarded the Complainant her contract of employment, which was signed by her on 10th May 2017.   The Respondent said the contract stated a start date of Tuesday 16th May 2017.   However, the Complainant was in the Store on Saturday 13th May 2017 to collect her uniform and she stated she could commence work on Monday 15th May 2017 (the Complainant denied this) and this is what took place.

The Respondent said that on Monday 29th May 2017, the Complainant was absent from work on a rostered shift.   The Respondent said that however on examination, it transpired that the roster had been changed after the Complainant had viewed it.   The Respondent said that although the HR Manager did email the Complainant, no further issue was made of this.

The Respondent said that on 9th June the Complainant attended new employee induction training and she emailed the HR Manager afterwards stating that it was very informative including a request to be considered for any vacancies in the social media team.

The Respondent said that during the Complainant first 6 weeks at work a number of issues occurred in relation to her communication style and tone adopted with members of the management team.   They said that this was raised with her at a Probation Review Meeting and her probation period was extended for a further month.   The Respondent said it should be noted that most of the Probation Review was positive in terms of sales and customer care was positive.   The Respondent said that the Complainant accepted the points made in a positive light without comment.

The Respondent said that in late July the Complainant had a one to one meeting with her named Manager in respect of sales targets, where she was told her sales were good, that she was meeting targets and that she stood out in terms of sales.

The Respondent said that on 4th August the Complainant arrived for work unsuitably dressed considering the Respondent dress code and custom and practice at the Store.   The Complainant was privately asked by her Manager to go and change to more suitable attire.   The Complainant left the Store at some time after 12 midday and she did not return.

At 1.52pm on the same day the Complainant emailed her resignation to the HR Manager stating that she felt that: “by standing up for herself more than once she is classed as having an ‘attitude’ and she was of the impression that she was hired for her ability to do the job and not on how much make up she could wear or if her shoes have a heel”.   The HR Manager was on leave on the day and she responded to the Complainant on her return to work on 8th August, accepting the resignation.

The Respondent submitted that the Complainant in her submissions has failed to establish a prima facie case of discrimination on the grounds of age or gender contrary to the Employment Equality Act 1998 and submitted that her complaints must be rejected in their entirety.

The Respondent said they apply a common standard of neatness and conventionality of dress to both women and men that does not unreasonably bear more heavily on one gender than on the other and on any one age group over another.

The Respondent quoted from Section 6 of the 1998 Act.

The Respondent said that Section 85A of the Act states that where, in any proceedings, facts are established by or on behalf of an employee from which it may be presumed there had been discrimination, it is for the employer to prove the contrary.   They said that once an employee can establish from the facts that they have been discriminated against, that is establish a prima facie case, then the burden shifts to the employee to prove that no discrimination took place.   The Respondent submitted that no such proof has been presented in the Complainant’s submissions of either direct or indirect discrimination on the grounds of gender or age.

The Respondent referred to the definition of harassment and they submitted that the Complainant was treated by them in a professional and reasonable fashion throughout and she did not raise any issue or grievance or allegation or harassment until she resigned on 4th August 2017.

The Respondent referred to the definition of victimisation.

The Respondent said the Complainant had a one to one meeting with her Manager on 2nd June and no issues were raised, the only issue discussed was the issue of payslips.

The Respondent said that another named Manager did speak with the Complainant in respect of the carrying out of her duties in particular on a busy Saturday on 27th May, when the Complainant was standing behind the till and answered the telephone at the till. The Manager corrected her on two occasions and informed her that this was not her job and that she had not yet been trained up on the till.   The Manager said that the Complainant answered her in an aggressive manner and that she was taken aback by the Complainant’s response to a senior manager so early in her employment.

The Respondent said the Complainant refers to an issue of 29th May 2017, when she was at home on a day off and she received an email from the HR Manager in relation to alleged unauthorised absence.   The Respondent said it transpired that the roster had been changed in the intervening period since had seen it and taken a copy of it and the Complainant had been reported as absent.   They said that later it became obvious that the Complainant had not seen the change in the roster and nothing more was made of the matter.   The Respondent said that later the Manager spoke to the Complainant and told her not to worry about the matter.

The Respondent said the Complainant states throughout her submissions that she was “fobbed off” and made to “feel silly and unwanted”.     The Respondent said that on 9th June the Complainant emailed the HR Manager stating her appreciation for the induction and that it was very informative and she asked if she could be kept in mind for any vacancies that arose in the area of creative photography or the social media team.   The Respondent submitted that the tone of this email does not indicate someone who in being put upon, victimised or harassed in her employment.

The Respondent says the Complainant states that “from that day on my work became unbearable” and yet no issue, complaint or grievance was raised, in particular in relation to that period in time.

The Respondent referred to the meeting between the Complainant and the HR Manager in relation to her probation period. The Complainant was praised for certain aspects of her work, however, issues in respect of her attitude to managers and having an aggressive tone on occasions was raised and her probation period was extended for a further month as a result.   The Respondent said that it can be seen from the record of the meeting that the Complainant did not challenge or question this and appeared to accept it after discussion.

The Respondent said that on 21st July a named Manager spoke to the Complainant about the fact that she had changed her hair colour to a quite unconventional colour that was not in keeping with the dress code and the custom and practice or expected appearance.   The Respondent said that this conversation was more of a coaching and informative basis allowing for an embedding of standards. They said that on a further occasion discussion took place in relation to make-up, where the Complainant said she couldn’t wear eye make-up due to sunburn and the Manager had helpfully told her that one of the cosmetic consultants could probably help her with something to remedy that.

The Respondent said they have a Grievance Policy that the Complainant could have used at any stage to deal with any issues she had.

The Respondent said they have a very balanced workforce in terms of age.   46.5% of the workforce in general are 40 years of age or older.   In Ladieswear the average age is 47.3%.

The Respondent said the Complainant states that “the final straw” for her was on 4th August, when she came into work and was told by her Manager that her dress was not in accordance with the dress code and she would have to go home and change.   The Respondent stated that that, “she felt awful, embarrassed and upset”.   The Respondent said it should be noted that the Manager did not discuss this in front of other employees and that it was a reasonable requirement to maintain the Respondent’s standards.   The Respondent said the Complainant was not singled out for any special attention as this has happened on previous occasions on probation periods for several employees of all ages and genders.   The Respondent said the Complainant states in her submission that there were “younger girls on the shop floor with very short skirts/dresses that they had worn previously but that they were never told to stop wearing them.”   The Respondent said that this in incorrect and the Complainant further alleges in her submission, “some girls on the shop floor do not wear any make-up and others wear flat shoes, no different than the one I wore and there are men working in the Store also and they do not have to wear make-up or heeled shoes, why should it be different for female staff members.”   The Respondent submitted that the dress code is universally applied to all 187 staff in a non-discriminatory fashion either directly or indirectly.

The Respondent said the Complainant further alleges that she was “singled out” in regard to the carrying out of day to day tasks, “for instance all of the employees were allowed to enter the till area, check sizes and stand with their customers at the till and I never witnessed anyone apart from myself being told off for doing so.”   The Respondent said this is grossly inaccurate statement, the Complainant has not been trained on the tills and this would have occurred at a later stage in her training and she would not be allowed to work the tills until she was trained to do so.   The Respondent said the Complainant further alleges that she “was bullied out of her job”.   The Respondent said that they have very robust grievance and bullying and harassment procedures that were given to the Complainant both with her contract of employment and her handbook and was discussed during the induction period.   The Respondent said the Complainant never sought to use these procedures to address any issues of concern to them and she voluntarily resigned her position on 4th August.

The Respondent said it is generally accepted retail practice that employees who deal with customers face-to-face can be subject to more prescriptive dress codes than say storeroom staff.   They said it is commonplace in the high end retail that some form of direction or correction takes place within the probationary period while new employees become used to the corporate culture and standards as prescribed by the Respondent.   They said that any such actions are implemented with all new employees regardless of gender or age group.

The Respondent submitted that employers are entitled to have different requirements in place for women and men.   They said that however what is important is that the requirements for women and men, when compared to each other, are equal in terms of prescription and conventional standards which they are in the Respondent’s case.   The Respondent submitted that the utilisation of a dress codes are necessary to fulfil that aim, and that they seek to treat all employees equally.

The Respondent said that the Complainant did encounter some issues during her probation period where corrective action was recommended by managers.   They said that these corrections, none of which were major or significant issues, were communicated in a professional and non-discriminatory fashion.   The Respondent said it should be noted and confirmed that most of the day-to-day communication was positive.

Based on the foregoing submissions the Respondent submitted that the complaints were unfounded and accordingly they should be rejected.

Findings, Conclusions and Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

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

I have carefully considered the evidence and the submissions made and I have concluded as follows.

The Complainant had made complaints that she was discriminated against by the Respondent on the grounds of her gender and her age and that she was harassed by the Respondent on the same grounds.

I note that in her submissions refers repeatedly to alleged bad communications and to alleged bad relations between her and certain managers of the Respondent.

She refers to confusion about her start date and the fact that it was wrong on her contract of employment.   To having to ask for payslips and when she would be paid.   She refers to not been at work when staff morning meetings took place and to not receiving information from management, to not receiving responses from emails and to no explanation given by the Respondent for getting things wrong about her rostered days and that a Manager barely spoke to her and that she was reproached for being at the till and answering the telephone there, there was delays in providing information to her, she did not receive manual handling and a variety of other things; however no evidence whatsoever was submitted that any or all of this was due to her gender or her age.

The Complainant also says a number of times that she felt and/or believed that she being singled out for adverse treatment and her submissions suggest that she believes that she was personally being picked on and that different rules were applied to her.   This suggests that she was being treated badly for personal reasons rather than her age or her gender and it tends to undermine her complaints under the Employment Equality Act.

I can see no valid evidence of discrimination or harassment based on the grounds of age or gender, at best the Complainant’s submissions are speculation or assertions without any factual evidence to support them and they do not form the basis upon which an inference of discrimination or harassment as defined can be drawn.

‘prima facie’ case in accordance with Section 85A of the Employment Equality Act 1998.   The Labour Court have consistently held 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. Mere speculation or assertions unsupported by evidence, cannot be elevated to a factual basis upon which and inference of discrimination can be drawn.

It is clear that the Complainant does not meet the burden set above to establish a prima facie case of discrimination

Based on the foregoing findings and all the evidence and submissions made I find and conclude that the Complainant has failed to establish a prima facie case of discriminatory treatment and/or harassment on the gender ground or the age ground.

I find, conclude and decide the following in relation to the complaints under the 1998 Act:

1. The Complainant has failed to establish a prima facie case of discrimination I respect of her conditions of employment on the grounds of gender and/or age or on any grounds in terms of Section 6(2) of the Employment Equality Acts and contrary to Section 8 of these Acts.
2.  

1. The Complainant has failed to establish a prima facie case of harassment on the grounds of gender and/or age or any other grounds in terms of Section 6(2) of the Employment Equality Acts and contrary to Section 8 of these Acts.

The Complainant’s complaints fail in their entirety.

Dated:   16.1.18

Workplace Relations Commission Adjudication Officer:  Seán Reilly

Key Words: Alleged discrimination in conditions of employment by reason of gender and age and alleged harassment on the same grounds