Complainant

Respondent

Anonymised Parties

A Complainant

A Respondent

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00013902-001

12/09/2017

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00013902-002

12/09/2017

This dispute involves a claim by the complainant against the respondent that she was discriminated against by the respondent on the ground of gender in respect of promotion and conditions of employment while on maternity leave and following her return to work after her maternity leave.   There is also a claim of victimization. The complainant has also submitted a claim of constructive Unfair Dismissal. The complainant referred her complaints against the above respondent on the 12th of September 2017.  

The complainant submits that she was employed by the respondent since 23rd of May 2017.   It is submitted that she was discriminated against by the respondent when it made a decision to restructure its accommodation department and introduce a new role of executive accommodation manager a more senior position to the complainant’s role as accommodation manager.   This decision was made while the complainant was on maternity leave and communicated to her in a meeting in December 2016 a few weeks before she returned to work after her maternity leave.    

The complainant returned to work on 5th of January 2017 and submitted her complaint to the WRC on 12th of September 2017,

The position of executive accommodation manager was advertised and following interview Ms. F was awarded the position and was appointed on 16th of May 2017.   The complainant was invited to apply for the position but refused to do so.  

The complainant submits that she went on sick leave on 23rd of March 2017 due to work place stress and that she resigned her position on the 11th of July 2017 without returning to work as she felt she had no choice but to resign due to the respondent’s treatment of her. It is submitted that this amounts to a constructive unfair dismissal.

The respondent submits that the complainant who was employed as Accommodation Manager returned to the same role in January 2017 and retained the same salary and conditions as she had prior to her maternity leave.     The respondent submits that it made a decision to restructure its accommodation department and introduce a new role of executive accommodation while the complainant was on maternity leave.

The respondent submits that this was not a demotion for the complainant and that she returned to the same salary terms and conditions which she had prior to her maternity leave. The respondent submits that the reason for its introduction of this new role was due to the fact that the hotel was expanding at a rapid rate and had gone from being a NAMA owned hotel to a privately-owned hotel in which huge investment had been made in a bid to bring the hotel from a very average NAMA run hotel to an award winning 4 star plus luxury hotel.  

The respondent submits that the hotel had undergone a large-scale refurbishment and restructuring and that the more senior executive roles had also been brought into other areas such as an Executive Head Chef and an additional Sous Chef had been brought into the kitchen.   The respondent submits that the hotel had doubled its turnover in the preceding period and had increased its staff numbers from 19 full time and 1 part time in 2016 to 33 full time and 2 part time positions. The respondent submits that it had increased its management team from eighteen persons in 2016 to thirty-two by 2018.

The respondent submits that it advertised for the position of Executive Accommodation Manager in March 2017 and that the complainant was invited to apply for the position but declined to do so.

The position was advertised and following interview Ms. F was awarded the position and was appointed on 16th of May 2017.  

The complainant went on sick leave on 23rd of March 2017 and resigned her position on the 11th of July 2017 without returning to work.   She submitted her complaint in September 2017.

Preliminary Issue in respect of claims under the Employment Equality Acts and under the Unfair Dismissals Act.

The complainant submitted two complaints on the same complaint form.   The first complaint related to a claim of discriminatory treatment on the ground of gender in respect of conditions of employment and promotion. This complaint is taken under the Employment Equality Acts. The second complaint claimed constructive unfair dismissal under the Unfair Dismissals Act.

The complainant at the hearing sought to pursue a complaint of discriminatory dismissal instead of the claim of Unfair Dismissal asserting that the details of such claim were contained in the first part of the claim which referred claims of discriminatory treatment on grounds of gender. Having considered this assertion and having examined the relevant documentation I am satisfied that the claim in respect of discrimination referred only to discriminatory treatment and that a claim of discriminatory dismissal had not been made and was therefore not before me.  The complainant’s representative when questioned conceded that the first complaint did not contain any reference to a dismissal.    I am also satisfied that a claim of Unfair dismissal was referred and so was correctly before me.  The complainant at the hearing pursued her claim of discriminatory treatment under the Employment Equality Acts and her claim of unfair dismissal under the Unfair Dismissals Act.

Complaint under the Employment Equality Acts- CA-00013902-001

Time Limits

Section 77(5) of the Employment Equality Acts requires that a claim for redress in respect of discrimination be referred within six months from the date of the most recent occurrence. This limitation period may be extended to 12 months where reasonable cause is shown.     The complainant referred her claim to the Commission on the 12th of September, 2017. Given the six-month time limit, the discriminatory treatment must have occurred or last occurred no earlier than 13th of March, 2017.

The complainant in this case has not requested an extension of time and has not advanced any reasonable cause which would justify an extension of time to 12 months.   It is however possible for a complainant to bring into a complaint more historic incidents of discrimination where a complainant can establish that they are part of a wider discriminatory regime or where there is sufficient connection between the incidents or acts. The complainant must, firstly however, establish that a discriminatory act occurred within the limitation period (see the decision of the Labour Court in Cork County VEC v. Hurley EDA 24/2011). In this regard I have decided that my investigation should focus, in the first instance, on alleged acts of discriminatory treatment which occurred between the 13th of March, 2017 and the 12th of September, 2017.

If I consider these alleged incidents to amount to unlawful treatment of the complainant contrary to the Acts, I will then consider the evidence adduced on the other (earlier) incidents complained of to determine if any of them were sufficiently connected to the incident within the six-month period so as to make them part of a continuous act of discrimination. However, should I find the alleged incident(s) within the six months preceding the referral of the complaint not to be well founded, the earlier alleged incidents would be statute barred.

It is clear from the above, that in order to consider the earlier alleged incidents of discrimination, I must firstly decide whether the most recent alleged incident of discrimination is proven.   In addition, I must be satisfied that the complainant has established a link between the incidents and that they can be considered as separate manifestations of the same disposition to discriminate.  

Findings and Conclusions of the Adjudicator/Equality Officer

The issue for decision by me now is, whether or not, the respondent discriminated against the complainant, on grounds of gender , in terms of Section 6 and contrary to Section 8 of the Employment Equality Acts, 1998 to 2015, in relation to her conditions of employment and promotion and whether she was victimised in accordance with Section 74(2) of these acts. There is also a claim of Unfair Dismissal. In reaching my Decision I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence at the Hearing.  

Discrimination

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.   If she succeeds in doing so, then, and only then, is it for the respondent to prove the contrary.   The Labour Court elaborated on the interpretation of section 85A in Melbury v. Valpeters EDA/0917 where it stated that section 85A: "places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule".

Section 6(1) of the Employment Equality Acts, 1998 to 2015 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)…..” Sections 6(2)(a)(b)(c) and (h) of the Acts define the discriminatory grounds of gender, marital/civil status, family status and race as follows – “as between any 2 persons, ...

(a) that one is a woman and the other is a man,..

(b) that they are of different marital/civil status,..

(c) that one has   family status and the other does not,...

(h) that they are of a different race, colour, nationality or ethnic or national origins….”

Gender-Pregnancy and the special protected period

The entire period of pregnancy and maternity leave constitutes a special, protected period as outlined in the Court of Justice of the European Union Decisions in Webb v EMO Air Cargo (UK) Ltd[1] Brown v Rentokil Ltd[2]and Dekker v Stichting Vormingscentrum[3]. In Brown v Rentokill Ltd, the Court of Justice explains why pregnancy is a special protected period:

Article 2(3) of Directive 76/207 recognises the legitimacy, in terms of the principle of equal treatment, first, of protecting a woman's biological condition during and after pregnancy and, second, of protecting the special relationship between a woman and her child over the period which follows pregnancy and childbirth.

It was precisely in view of the harmful effects which the risk of dismissal may have on the physical and mental state of women who are pregnant, women who have recently given birth or women who are breastfeeding, including the particularly serious risk that pregnant women may be prompted voluntarily to terminate their pregnancy, that the Community legislature, pursuant to Article 10 of Council Directive 92/85/EEC of 19 October 1992 on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding (tenth individual Directive adopted within the meaning of Article 16(1) of Directive 89/391/EEC) (OJ 1992 L 348, p. 1), which was to be transposed into the laws of the Member States no later than two years after its adoption, provided for special protection to be given to women, by prohibiting dismissal during the period from the beginning of their pregnancy to the end of their maternity leave. [4]

The complainant submits that she was discriminated against by the respondent when it made a decision to restructure its accommodation department and introduce a new role of executive accommodation manager a more senior position to the complainant’s role as accommodation manager.  This decision was made while the complainant was on maternity leave and communicated to her in a meeting in December 2016 a few weeks before she returned to work after her maternity leave.     The complainant returned to work on 5th of January 2017 but her complaint was not submitted until September 2017.  

The complainant at the hearing stated that she was due to return to work following her maternity leave around the middle of December but stated that due to annual leave she was not intending to return to work until January 2017. The complainant told the hearing that she was called to a meeting by the respondent a few weeks before her return to work and was advised that the accommodation department was being restructured and that the respondent was thinking about creating a new role of Executive accommodation manager which would be a more senior role to that of the complainant who was accommodation manager.    The complainant returned to work in her role as accommodation manager in January 2017. The respondent advised the hearing that the complainant returned to the same role and retained the same salary and conditions as she had prior to her maternity leave.     The complainant advised the hearing that the respondent did advertise for the position of Executive Accommodation Manager in March 2017.  The complainant stated that she was invited to apply for the position but that she knew there was no point in applying as the respondent had already decided to award he position to Ms. F who had covered the complainant’s maternity leave.   The position was advertised and following interview Ms. F was awarded the position and was appointed on 16th of May 2017.  

The respondent advised the complainant at the meeting that it was intended that the person who had covered for the complainant during her maternity leave would be awarded this more senior role. The complainant submits that this meant a demotion for her as she would no longer have responsibility for rostering the accommodation department and that she would also be answerable to this more senior position of Executive Accommodation Manager.   The complainant advised the hearing that she went on sick leave on 23rd of March, 2017 due to work place stress and that she   resigned her position on the 11th of July 2017 without returning to work as she felt she had no choice but to resign due to the respondent’s treatment of her.

The respondent advised the hearing that it had made a decision to appoint an Executive accommodation manager while the complainant was on maternity leave and stated that it called her to a meeting prior to her return to work to advise her of this and other changes and restructuring the hotel was undergoing in order to keep her informed prior to her return to work.   The respondent stated that this was in no way a demotion for the complainant and stated that she was returning to the same salary terms and conditions which she had prior to her maternity leave. The respondent went on to state that the reason for its introduction of this new role was due to the fact that the hotel was expanding at a rapid rate and had gone from being a nama owned hotel to a privately-owned hotel in which huge investment had been made in a bid to bring the hotel from a very average NAMA run hotel to an award winning 4 star plus luxury hotel.  

The respondent advised the hearing that the hotel had undergone a large-scale refurbishment and restructuring and that the more senior executive roles had also been brought into other areas such as an Executive Head Chef and an additional Sous Chef had been brought into the kitchen.  The respondent advised the hearing that the hotel had doubled its turnover in the preceding period and had increased its staff numbers from 19 full time and 1 part time in 2016 to its current numbers of 33 full time and 2 part time positions. The respondent told the hearing that it had increased its management team from eighteen persons in 2016 to thirty two by 2018. This was not disputed.

The respondent told the hearing that a decision had been made that it needed to bring in an Executive Accommodation Manager due to the increased volume of room bookings and due to new and improved services being introduced in the accommodations Department. The respondent stated that these increased services and volume could not be provided by an Accommodation Manager alone it also stated that the complainant who occupied the position of Accommodation Manager and who worked three days a week could not be expected to handle this increased volume and service even if she were to increase her working days.   The respondent also added that Ms. F had 5-star experience and stated that it needed this level of expertise to bring the accommodation department up to 5-star standard.  

As stated above the relevant period for the purpose of the complaint of discrimination is from the 13th of March 2017 to the 12th of September 2017.   The complainant was legally represented since the 31st of March 2017 but yet did not submit her complaint to the Workplace Relations Commission until the 12th of September 2017.      The complainant in this case has not requested an extension of time from 6 months to 12 months and has not advanced any reasonable cause which would justify an extension of time to 12 months.  

Given the relevant time period for the complainant I am restricted to examining allegations of discrimination which took place between the 13th of March 2017 and the 12th of September 2017.   In this regard the complainant advised the hearing that the respondent publicly advertised the position of Executive Accommodation Manager on the 17th of March 2017 and interviewed three candidates for the position on 24th of April 2017. The complainant told the hearing that the respondent awarded the position to Ms. F on the 16th of May 2017.  

The respondent advised the hearing that it invited the complainant to apply for the position of Executive Accommodation Manager but that she declined to do so.   The complainant stated that there was no point in her applying for the position as it had already been decided to award the position to Ms. F.     Given that the complainant did not apply for the position it is hard to see how she can claim to have been discriminated against on the ground of gender in relation to her pregnancy in respect of a promotion for which she did not apply for.   While it may be that the respondent had already decided to award this position to Ms. F the complainant has advanced no arguments to support an assertion that she was a more suitable or more highly qualified candidate for the role or that she was discriminated against on grounds of gender in respect of her pregnancy in respect of a promotion for which she did not apply.

The complainant in advancing her case seems to be asserting that the respondent’s decision to restructure the accommodation department and to introduce a new role of Executive Accommodation Manager, in and of itself amounts to discrimination on grounds of gender in respect of her pregnancy.   The respondent in its submissions and at the hearing has advanced substantial evidence and documentation to support its assertion that the decision to create a new position of Executive Accommodation Manager was made due to the rapid and continuing expansion of the business and due to the fact that the hotel was increasing its volume and level of service in its accommodation Department and while it is unfortunate timing that this decision was made while the complainant was out on maternity leave it is clear from the evidence adduced that the complainant was being retained in her role as Accommodation manager on the same salary and terms and conditions but that the rostering role was to be given to the new Executive Accommodation Manager.   Evidence was also adduced that the complainant had asked whether she would be allowed to retain her current three day working pattern and on the set days which she enjoyed and she was reassured that this would not change. No evidence was adduced to suggest that the complainants working conditions were changed during the relevant period.  

While it is clear that the respondent’s decision to create a new role of Executive Accommodation Manager caused the complainant great distress and upset it is not clear how this decision or if this decision actually impacted on her working conditions.   It is also clear that the respondent repeatedly reassured the complainant that she would retain the same salary and terms and conditions as she had prior to her maternity leave.     No evidence has been advanced to show that the complainant was better qualified than the successful candidate but in any event that is not the case before me as the complainant did not apply for the role I cannot consider whether there was any discrimination in the selection or interview process which could be considered to amount to less favourable treatment of the complainant.     It is also clear that the complainant had concerns that the introduction of the new role would affect her working conditions adversely but no evidence has been adduced to show that her conditions were adversely affected or to substantiate that claim.

Having regard to the totality of the evidence adduced in relation to these matters and the relevant time period I am satisfied that the respondent did not discriminate against the complainant on the ground of gender in respect of her pregnancy in relation to promotion and/or in relation to her conditions of employment during the relevant period.

Victimisation

The complainant has submitted that she was victimised by the respondent.

Section 74(2) of the Employment Equality Acts, 1998-2011 defines victimisation as follows:

“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………….

(f)           an employee having opposed by lawful means and act which is unlawful under this Act…….

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

In Tom Barrett v Department of Defence the Labour Court set out the three components which must be present for a claim of victimisation under section 74(2) of the Acts to be made out.     It stated that (i) the complainant must have taken action of a type referred to at paragraphs (a)-(g) of section 74(2) – what it terms a protected act, (ii) the complainant must be subjected to adverse treatment by his/her employer and (iii) the adverse treatment must be in reaction to the protected act having been taken by the complainant.

The complainant in the present case had ticked the Victimisation box on the complaint form. At the hearing of the complainant I outlined the elements of a victimisation claim and requested the complainant’s submissions and evidence in this regard.       The complainant when questioned at the hearing about the claim of victimisation was unable to provide any evidence of a protected act which had resulted in adverse treatment of her by the respondent.   I am thus satisfied that the complainant was not victimised by the respondent contrary to Section 74 (2) of the Act.

I have completed my investigation of this complaint and in accordance with section 79(6) of the Employment Equality Acts, 1998-2015 I issue the following decision. I find –

(i)                  that the complainant was not discriminated against by the respondent on grounds of gender in terms of section 6(2) of the Employment Equality Acts, 1998 -2015 and contrary to section 8 of those Acts in respect of promotion and/or conditions of employment

(ii)                that the complainant was not victimised by the respondent contrary to Section 74 (2) of the Act.

Claim under Unfair Dismissals Act- CA-00013902-002

Constructive Unfair Dismissal

The complainant has submitted that the respondent’s treatment of her was so unreasonable that it forced her to resign her employment and that this amounts to a constructive dismissal.   The complainant submitted her resignation on the 11th of July 2017 having been out on sick leave due to work related stress since 23rd of March 2017.

Sec 1(b) of the Unfair Dismissals Act states, “the termination by the employee of his/her contract of employment with his/her employer, whether prior notice of the 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, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer”.

In a constructive dismissal claim the burden of proof shifts to the person making the claim. They also have to demonstrate that they were justified in their decision and it was reasonable for them to resign. The claimant needs to demonstrate that they have no option but to resign. In addition, there must have to be something wrong with the employer’s conduct.

In UD 1146/2011 the Employment Appeals Tribunal (EAT) held “in such cases a high level of proof is needed to justify the Complainant’s involuntary resignation from their employment, i.e. he must persuade the Tribunal that his resignation was not voluntary”.

It is also well established that the Complainant is required to exhaust the company’s internal grievance procedures in an effort to resolve her grievance prior to resigning and initiating a claim for unfair dismissal. In UD1350/2014 M Reid v Oracle EMEA Ltd the EAT stated; “It is incumbent on any employee to utilise and exhaust all internal remedies made available to him or her unless he can show that the said remedies are unfair”

In Allen v Independent Newspapers (Ireland) Ltd (2002 ELR 84) it stated,

i) the onus is on the claimant to prove his case,

ii) the test for the claimant is whether it was reasonable for him to terminate his contract”.   In addition The EAT in Donnegan Vs Co Limerick VEC UD828/2011 stated,”In particular, the claimant must show that the respondent acted in such a way that no ordinary person, could or would continue in the workplace”.

In McCormack v Dunnes Stores : EAT UD 1421/2008

“The notion places a high burden of proof on an employee to demonstrate that he or she acted reasonably and had exhausted all internal procedures formal or otherwise in an attempt to resolve her grievance with his/her employers. The employee would need to demonstrate that the employer’s conduct was so unreasonable as to make the continuation of employment with the particular employer intolerable”.

I note that the Complainant in the present case when asked at the hearing whether she had raised a grievance with the respondent replied “No”.     As the hearing progressed it was submitted on behalf of the complainant that she did have a number of meetings with the respondent where she expressed her dissatisfaction and upset at its proposal to create the new role of Executive Accommodation Manager. It is submitted that this amounts to raising a grievance even though no official grievance was raised and the complainant at the hearing stated that she did not raise a grievance in accordance with the respondent’s grievance procedures.   A number of minutes of meetings were submitted in evidence. It is clear that the issue of the post of Executive Accommodation Manager was discussed in these meetings and that the complainant did ask that the respondent not appoint this role in her absence (during her maternity leave) . The respondent in these meetings explained the reasons for its decision to appoint a new role of Executive Accommodation Manager and complainant in these meetings   offered to increase her hours.     The respondent in reply to this invited her to apply for the new role of Executive Accommodation Manager.     The respondent at all times reassured the complainant that her salary and conditions would remain the same.

Following the advertisement for the post of Executive Accommodation Manager a letter issued from the complainants solicitor to the respondent on the 31st of March 2017 set out the assertion that the complainant (who was on sick leave since 23rd of March) had been discriminated against on the ground of gender following her return to work after her maternity leave as the introduction of the role of Executive accommodation manager would have the effect of replacing or demoting the complainant.   This letter also sought the respondent to withdraw its advertisement for the role of Executive Accommodation Manager.

The respondent in response to this replied by letter dated 6th of April, 2017 again stating that the complainant’s role was not being replaced and stated that she would continue with the same salary and hours after the new Executive Manager was appointed.   This letter also set out the rationale for the creation of the new role and the expansion the hotel was undergoing and set out the additional duties involved in the new role.

Following this the respondent proceeded to appoint the role of Executive Accommodation Manager on 16th of May 2017.   The next communication from the complainant’s solicitor was sent to the respondent on 11th of July 2017 and stated that the complainant was resigning from her position immediately and asking the respondent not to contact her directly but to correspond only with her representative.

It is clear from the evidence adduced that the complainant was not happy with the respondent’s decision to introduce the new role of Executive Accommodation Manager.   It is also clear that the complainant saw this new role as a replacement or demotion of her own role.     The respondent in its submissions and at the hearing outlined the rationale for the introduction of this new role and at all times reassured the complainant that her role including her salary and terms would remain the same.

It is clear that the complainant was also offered the opportunity to apply for this role but refused to do so. It is clear that concerns raised by the complainant in respect of the new position were addressed by the respondent and that she was at all time reassured that her role would remain the same and that she would retain the same salary and terms as she enjoyed prior to her maternity leave.   It is clear from the evidence adduced that the respondent made a decision to appoint a new position of Executive Accommodation Manager and that the complainant was not happy with this decision.

It would appear from the evidence adduced that the only outcome which would have satisfied the complainant was for the respondent to reverse its decision to appoint an Executive Accommodation Manager. I am satisfied that the respondent has provided me with appropriate rationale and supporting documentary evidence in support of its decision to restructure its accommodation department and that it is not for me to decide whether it should or should not create a new role of Executive Accommodation Manager.   The question before me is whether the respondent’s treatment of the complainant was such that she was left with no choice but to resign her position due to the respondent’s actions.  

Having regard to all of the circumstances adduced in relation to this matter the complainant has failed to convince me that the respondents actions in creating a new role of Executive Accommodation Manager amounts to a   fundamental breach of the Complainant’s terms and conditions of employment to the extent that she could no longer continue in the workplace. In examining the complainant’s submissions under the reasonableness test, it is clear that the complainant did not submit an official grievance but that she did raise allegations of discrimination through her solicitor’s letter of 31st of March 2017 and that this was replied to by the respondents 6 days later with reassurances that her salary and terms would not be affected by the introduction of this new role.

It is clear from the evidence adduced that the respondent behaved reasonably in dealing with the complainant’s concerns in respect of the introduction of the new role and that concerns these were addressed at meetings with the complainant   and assurances given in respect of her own role.   These concerns were also addressed in writing in response to the letter from the complainant’s solicitors.

I have considered all of the evidence both oral and written which was substantial in the present case.   Looking at the actions of both the Complainant and the Respondent over the entire period, I find that the Complainant has failed to establish that she had no option but to resign her position due to the conduct of her employer.   I find that the complainant has failed to demonstrate that she was justified in her decision to resign and I am satisfied that it was not reasonable for her to do so.   Accordingly, I find that the complainant has not been constructively dismissed.

I have completed my investigation of this complaint and in accordance with Section 8 of the Unfair Dismissals Act, 1977 I issue the following decision. I find that

In all the circumstances, I cannot find that the Respondent’s conduct was so unreasonable as to make it impossible for the complainant to continue in the employment or could justify the Complainant’s terminating her employment by way of constructive dismissal nor was it such as to show that the respondent no longer intended to be bound by one or more of the essential terms of her contract of employment. Accordingly, I must hold that the complainant’s employment did not come to an end by dismissal and that the   complainant was not subjected to a constructive dismissal.   I find that the complainant has not been constructively dismissed.