FULL RECOMMENDATION
PARTIES : HYDE AND SEEK GLASNEVIN DIVISION :
SUBJECT: 1.Appeal of Adjudication Officer Decision No(s). ADJ-00023794 CA-00030455-001. This is a cross appeal by Ms. Byrne-Hoey, ‘the Complainant’ and Hyde and Seek Glasnevin Ltd., ‘the Respondent’, of a Decision by an Adjudication Officer, ‘AO’, under the Employment Equality Acts 1998-2015, ‘the Acts’. The Complainant was employed by the Respondent as a Childcare Assistant from April 2019 to June 2019. The Complainant lodged a complaint under the Acts with the Workplace Relations Commission, ‘WRC’, that she had been discriminated against contrary to the Acts. An Adjudication Officer, ‘AO’, decided that the claim was well founded and awarded compensation of €2000. The Respondent appealed the Decision. The Complainant appealed the quantum awarded. Summary of Complainant arguments. On 11 June 2019, the Complainant was at work when a colleague, ‘M’, attempted to open a door while she had a child in her arms. M pulled the door in an aggressive manner so as to remove chairs. Having forced the door open, M left the room and returned without the child. She then began to stack chairs in an aggressive fashion and was quite disruptive. The Complainant asked M in a calm manner to calm down as she was frightening the children. M approached the Complainant in a crazed manner, shouting at her and threatening to kill her. The Complainant told M that she was frightening the children. Despite the fact that the Complainant had a child in her arms, M pushed her arm when the Complainant was pointing and M shouted at her. The Complainant feared that she would be assaulted. M was close to her and the child when she was shouting at the Complainant. When Ms. Teo Frentiu, the Complainant’s manager, arrived, M was still screaming and pointing at the Complainant. The Complainant left the child in another room and returned to her work. Later that day, the Creche Manager, Ms. Siobhan Davy, asked the Complainant about what had happened and the Complainant gave an account and raised her concerns about what had occurred. Ms. Davy had no regard for the issues being brought to her attention and told the Complainant not to say anything to M in future but to go and get a manager because M had gone home upset and Ms. Davy did not want anybody to be upset. This was the first example of age discrimination. At the time, the Complainant was 19 years of age, M was 26 years of age and had worked for the Respondent for 5 years. The Complainant was treated less favourably than M. On the following day, despite what had happened, the Complainant was called to a meeting with Ms. Frentiu and Ms. Davy where she was given a warning for what was described as ‘Failure to follow a reasonable management instruction on 11 June 2019. Unprofessional behaviour in the workplace..’ and she was told that her ‘behaviour in the office was unacceptable and unprofessional’. In treating the Complainant, who is a younger woman, in a less favourable manner than M, there was clear discrimination contrary to the Acts. S. 6(2)(f) of the acts provides protection against less favourable treatment based on age. Discrimination as a result of demeaning stereotypes is a violation of human dignity. The EU Framework Directive of 2000 makes clear that a person cannot be treated less favourably than a comparator due to age and the Directive defines direct discrimination as occurring when such less favourable treatment occurs. It is clear in the way in which the Complainant was treated following the attack by M, that she was treated less favourably than M and this is because she was the younger employee. This less favourable treatment was applied in the immediate aftermath of the attack, when the Complainant received no support. It continued when Ms. Davy put M’s upset above that of the Complainant, when the Complainant had been attacked while she was holding a child. This pattern of discrimination continued up to the dismissal of the Complainant . On 16 June 2019, the Complainant set out a grievance regarding the incident on 11 June 2019 and related matters. On 17 June 2019, she was told, at 6.35am, to go to work that day in a different premises. This was as a result of having raised a grievance. This reaction brought on anxiety for the Complainant. She was unable to attend work due to this illness. Later that day, the Complainant was invited to a disciplinary hearing. On 18 June 2019, the Complainant secured an appointment with her doctor and received medical certification that she was unfit for work for two weeks due to ‘work related stress’. On 19 June 2019, the Complainant received notice that she had been summarily dismissed due to having, allegedly, failed to carry out her duty to the standard required. Without prejudice to the foregoing, treatment of employees on probation represents indirect discrimination based on age. In the child-care industry it is reasonable to assume that probationers are young people. In this case, the employees of the Respondent who are on probation are younger than the more established employees. The Acts and the Directive make clear that where a policy is practiced in a workplace that places a group covered by the grounds of discrimination at a disadvantage, that policy is discriminatory. In the instant case, a policy that penalises younger employees to appease older employees is discriminatory. As noted inSt. James’s Hospital v. Eng EDA023,the Court has to be alert to the possibility of unconscious or inadvertent discrimination. This dicta is relied upon in the context of the Respondent’s different approaches to the Complainant and M. An appropriate award is warranted for this discrimination. Summary of Respondent arguments On 11 June 2019, there were two incidents involving the Complainant. Some time between mid-morning and 1 pm, the Complainant went to see Ms. Maura Boyce in the office. Ms. Boyce is a member of administration staff. The Complainant sought documentation relating to her employment. Ms.Boyce told the Complainant that she did not have access to it but that she would follow up with two managers, Ms. Frentiu and Ms. Davy. The Complainant did not accept this and she raised her voice, refused to leave the office and would not accept what she was told. Ms. Boyce was very upset. She telephoned Ms. Davy. They met off-site. Ms. Boyce was crying and very upset. Ms. Davy said that she would speak to the Respondent’s HR advisors. Ms. Davy returned to the Tolka Road creche where she was working that day and Ms. Boyce returned to Glasnevin. Shortly after 4pm, Ms. Davy received a call from M, who was very upset over a number of matters, including an incident that occurred with the Complainant in the ECCE room, or winter garden area of the creche. It was a short conversation. M was stressed. Ms. Davy then rang Ms. Boyce to enquire about the incident as Ms. Frentiu had not mentioned it prior to her finishing work for the day. Ms. Boyce replied by text, stating that all was calm now and that Ms. Davy should talk to both parties the following day. Ms. Davy decided to go to the Glasnevin creche. It is unlikely that she arrived there until after 5pm. She did not have a conversation with the Complainant. She may have seen her but she did not engage in the conversation alleged by the Complainant. The record shows that the Complainant left work at 5.05pm. Ms. Davy could not have said that M went home upset as the attendance book shows that M remained in work until 6.15pm. Ms. Davy wanted to speak to Ms. Frentiu before doing anything further. When Ms. Davy spoke to Ms. Frentiu the following day, she got a very different account of the incident than that described by the Complainant. It is acknowledged that an incident occurred but it is denied by the Respondent that M cursed or used the words described by the Complainant. There were about 20 after schoolers present and if the incident was as described, it would be expected that there would have been complaints. There were none. The location was close to where Ms. Frentiu was yet she did not hear what is alleged to have happened. During the morning of 12 June 2019, Ms. Davy had an interaction with the Complainant regarding the Complainant refusing to care for Montessori children who were not graduating that day. The Complainant wanted to be part of the graduation but she was needed elsewhere. There was no mention of the incident with M the previous day. Around 3.30pm, Ms. Davy received advice from the HR advisors. She called Ms. Frentiu and the Complainant into the office and handed her an informal warning regarding the incident with Ms. Boyce the previous day. Ms. Davy sought separate advice regarding the Winter Garden incident. She was advised to give both parties the opportunity to raise a grievance. The Complainant never raised this matter as an issue with Ms. Davy. A prima facie case of discrimination cannot be established. The age difference of 7 years is not significant. In any event, age was not a factor that informed the Respondent’s conduct towards the Complainant. The claim of discrimination, which fails to address the incident with Ms. Boyce at all, arises out of alleged less favourable treatment of the Complainant compared to M. However, the Respondent can prove that the meeting on 12 June 2019 and the informal warning issued arose out of an entirely different matter that had nothing to do with the incident involving M. This was made clear to the Complainant at the meeting on 12 June 2019. Witness evidence Ms. Jade Byrne Hoey Ms. Byrne-Hoey is the Complainant. The witness outlined, as per the submission above, how an incident arose between M and herself on 11 June 2019. She described how she was verbally abused by M, how she was frightened and concerned for the children in the room and the child in her arms, in particular. She described how M pushed her arm in the course of the incident. The witness described how the incident arose after she asked M to ‘calm down’, when she was stacking chairs in an obvious temper. The witness said that Ms. Frentiu entered the room and asked about what had happened. At this time M was still shouting at the Complainant. The witness said that M was in her mid-20s at the time. The witness was 19. The witness said that the incident occurred after 4pm on that day. The witness left work at 5.05pm. On her way out, the witness said that she met Ms. Davy and had a conversation with her about the incident, in which Ms. Davy told her that, in future, she should avoid confrontation with M, who had gone home upset and that Ms. Davy had said that she did not want anybody to be upset, so the witness should call a manager rather than have future confrontations with M. The witness denied that she had any confrontation with Ms. Boyce on 11 June 2019. She said that she approached Ms. Boyce for her contract on 12 June 2019 after the incident with M. The witness said that she was disappointed not to be given the chance to attend the Montessori graduation. The witness said that there was no argument with Ms. Boyce. The witness said that she was called to a meeting on 12 June 2019 with Ms. Frentiu and Ms. Davy and she was handed a written warning. She could not understand references to her professional standards. She felt that she was being punished for the incident with M, in which she had been the victim. The witness said that she enquired about what was to happen regarding the incident and she was told to look at the company handbook. There was no sanction against M. She was told M’s version of events. The witness said that she felt as if she was just a girl whose view did not matter but M was a woman. Under cross examination, the witness accepted that none of the correspondence with her referred to age. The witness denied ever shouting at Ms. Boyce. She said that she was upset that she could not get a copy of her contract but that she was not upset with Ms. Boyce. The witness refuted a claim that the conversation which she had described with Ms. Davy had not occurred and she repeated the details. It was put to the witness that the only incident discussed at the meeting on 12 June 2019 was that which occurred between Ms. Boyce and herself and that she was not given any warning regarding the incident with M. The witness denied this. It was put to the witness that the warning refers to an incident in ‘the office’, so it is clear that this refers to the incident with Ms. Boyce in the office, whereas the incident with M occurred elsewhere. It was put to her also that the warning referred to a refusal to follow an instruction, that M had never given her an instruction but Ms. Boyce had by telling her to approach the two managers. The witness denied ever shouting at Ms. Boyce and reiterated that she was punished for the incident with M and that she had not spoken to Ms. Boyce on 11 June 2019. In response to questions from the Court, the witness said that Ms. Davy and M were about the same age. She said that she was treated differently to M. She received a written warning. Nothing was done about M. Ms. Siobhan Davy Ms. Davy is the Creche Manager for the Respondent. The witness said that she was 30 years old at the time of the events before the Court. M was 26. The witness said that, typically, people in the industry tended to be in the 18 to 30 age bracket. The witness said that age was never an issue in the business. She denied having a less positive view of a 19-year-old compared to a 26 year old. The witness described, as per submission above, how she came to meet Ms. Boyce on 11 June 2019 off-site and how Ms. MB was upset because the Complainant had shouted at her when Ms. Boyce could not provide the Complainant with her contract and had advised the Complainant to approach Ms. Frentiu or the witness. The witness said that she went back to Tolka Road after this and contacted the Respondent’s HR advisors. At about 4.30pm, the witness received a call from M who referred to a disagreement with the Complainant. It was a brief conversation. After contact with Ms. Boyce, the witness went to the Glasnevin creche. She left at about 4.45pm and arrived about 5.05pm. She denied that she spoke to the Complainant then. She could not be sure but she may have seen her but they did not speak. She noted that M had not gone home upset and was recorded as remaining in the creche until 6.15pm. On 12 June 2019, the witness said that she spoke to Ms. Frentiu about the incident between the Complainant and M. It did not seem like a big incident at the time. She stated that the meeting with the Complainant had nothing to do with this incident. She said that she followed the advice of the Respondent’s HR advisors on how to deal with the incident between the Complainant and Ms. Boyce and that the warning had related to this. Under cross examination, the witness said that Ms. Boyce was a woman in her 40s. She was not a manager. When asked why she believed Ms. Boyce but not the Complainant, the witness said that the Complainant had not disputed Ms. Boyce’s account. The witness said that Ms. Boyce had only worked for the Respondent for about 10 months at that time. The witness said that M had worked for about 5 or 6 years for the Respondent at that time. When it was put to her that her account of arriving at Glasnevin and not speaking to the Complainant was not credible, the witness repeated that she had not spoken to her at the time. The witness confirmed that no action had been taken against Ms. Boyce. The witness described the letter given to the Complainant as a letter of concern rather than as a warning. Under questioning from the Court, the witness said that the meeting was the opportunity for the Complainant to explain her actions. When it was then put to her that she had the letter ready before the meeting, the witness said that if the Complainant had disputed Ms. Boyce’s version of events, she would have considered her points. She denied that there was any element of age in her consideration of the matter and noted that the Complainant had not disputed or disagreed with the version of events given by Ms. Boyce. Proceedings adjourned at this point. Upon resumption, the witness gave evidence regarding the claim under the Protected Disclosures Act. The witness said that no issues were raised with her by the Complainant in the few days after 12 June 2021. She said that the first she had seen of the disputed email was when the WRC complaint was received. She said that she had sought to have their system reviewed to determine if this mail had been received but that she was advised that the log only went back for 6 months. The witness said that she would have acted if she had received it. The witness said that on 17 June 2019 she had texted the Complainant at about 6.35 am to tell her that she was needed at the Tolka Road creche that morning. This creche opened at 7.30am. The Complainant had said that she did not want to go there. The witness was under pressure to cover the staff/children ratios. She had telephone conversations with the Complainant, the Complainant’s mother and boyfriend. They were complaining about her need to have the Complainant work in Tolka Road. About 20 minutes before she was due to report for work, the Complainant texted to say that she could not come in as she was ill. There was no reference to an email sent the previous evening. She never heard from the Complainant again. Later that day, she sent a request to the Complainant to attend a disciplinary hearing because of her failure to attend for work and a possible breach of contract. The complainant did not attend. Due to the issues concerned, the witness dismissed the Complainant on 19 June 2019. The witness said that she could plan ahead if she knew whether or not a staff member was ill and unable to work but that she needed advance notice, the usual convention was to advise before 4.30pm the day before, when possible. The witness said that she was mindful of the Complainant’s short service. The witness said that the decision was unrelated to any incident with M or Ms. Boyce. She said that she did not receive a sick note for the Complainant until 20 June 2019. The witness said that the Complainant’s telephone was not handed to her at the WRC hearing. It was shown to her. The witness noted that it was difficult to get suitable child-care staff. Under cross examination, the witness said that she did not have access to her e-mails on Sundays without logging on to the creche system. She did not receive e-mails related to work on her telephone. She did not receive the e-mail allegedly sent on 16 June 2019, (a Sunday). When the Complainant’s representative drew attention to e-mails from her that appeared to have been sent from her telephone, the witness clarified that she could access e-mails but this required her to log on to the creche’s system. The witness said that it was her decision to allocate the Complainant to the Tolka Road creche on Monday, 17 June 2019. The Complainant was not an assigned key carer allocated to a room and she needed somebody to cover a gap in Tolka Road. The witness was referred to a text from the Complainant at 07.36am on 17 June 2019, which referred to the incident not being dealt with, about which she was asked if this did not refer to the matters raised in the e-mail of the previous night. The witness said that she thought it referred to the discussions prior to this about the Complainant going to Tolka Road and she denied that this was unlikely. Under questioning from the Court, the witness clarified that she had texted the Complainant before lunch on 17 June 2019 about a disciplinary meeting and had sought a response by 4.30pm. When asked why was this such a rush, the witness said that she needed to be able to rely on staff to be available or to let her know in advance if they were not. The witness reiterated that she had not received the medical cert. until 20 June 2019. She said that she had no concerns that the Complainant had been dismissed without knowing what had happened. Note-During the adjournment of proceedings, the Respondent made application to the Court for access to the Complainant’s device in order to ascertain with certainty if the email of 16 June 2019 had been sent. Alternatively, the Respondent had sought an ‘original, native’ copy of the alleged e-mail. The Court had declined to order access to the Complainant’s device on grounds that to do so would be an oppressive intrusion into her right to privacy, which, even if the Court had the authority to order, which is arguable, would be an excessive requirement by the Court, in the circumstances. The Court noted that the Respondent intended to call a witness on this matter and that the witness could explain the significance of his report and the meaning of an ‘original, native’ copy. The Court had noted also that it would consider this evidence and whether any conclusions could, or should, be drawn from the fact that the Complainant was unwilling to comply with such a request when made directly to her representative. Mr. Mark Monahan Mr. Monahan is a Director of Digital Forensics with Grant Thornton and a lecturer in the subject. A report prepared by the witness had been sent to the Court by the Respondent. The witness explained that to be certain that an email had been sent would, ideally, require an examination of the Complainant’s device. Alternatively, it was possible to use technology that, when applied to an email, could confirm whether or not it had been sent. Upon questioning from the Court, the witness stated that this technology would require technical assistance. This would best be offered in person by somebody accessing the device with the Complainant, while it might be possible to offer a ‘step by step’ guide in writing. The witness gave details of the searches of the Respondent’s email system that he had undertaken. He had found no evidence that it had been received and no evidence that it had been forwarded and/or deleted. He felt that it was unlikely that it had gone to the ‘Junk Folder’. The witness said that it was impossible to be 100% definitive, in the circumstances. He had got a colleague to verify his searches also. The witness said that he found no subsequent evidence that the mail had generated other mails. In response to a question from the Court, the witness said that he could not say with certainty, without access to the device or an original native copy, if the mail had been sent but he could find no trace of it from his search. On re-direct, the witness noted that with the access or copy mentioned, it would be relatively easy to say definitively if the mail was sent. The applicable law Employment Equality Acts 1998-2015 6. (2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are— (a) that one is a woman and the other is a man (in this Act referred to as “the gender ground”), (b) that they are of different civil status (in this Act referred to as “the civil status ground”), (c) that one has family status and the other does not (in this Act referred to as “the family status ground”), (d) that they are of different sexual orientation (in this Act referred to as “the sexual orientation ground”), (e) that one has a different religious belief from the other, or that one has a religious belief and the other has not (in this Act referred to as “the religion ground”), (f) that they are of different ages, but subject tosubsection (3)(in this Act referred to as “the age ground”), (g) that one is a person with a disability and the other either is not or is a person with a different disability (in this Act referred to as “the disability ground”), (h) that they are of different race, colour, nationality or ethnic or national origins (in this Act referred to as “the ground of race”), (i) that one is a member of the Traveller community and the other is not (in this Act referred to as “the Traveller community ground”). (2A) Without prejudice to the generality ofsubsections (1)and(2), discrimination on the gender ground shall be taken to occur where, on a ground related to her pregnancy or maternity leave, a woman employee is treated, contrary to any statutory requirement, less favourably than another employee is, has been or would be treated. (3) (a) The age ground applies only in relation to persons above the maximum age at which a person is statutorily obliged to attend school. The comparators. 28.— (1) For the purpose of this Part, “C” and “D” represent 2 persons who differ as follows: (a) in relation to the F51 [ civil status ] ground, C and D have different F51 [ civil status ]; (b) in relation to the family status ground, C has family status and D does not, orvice versa; (c) in relation to the sexual orientation ground, C and D are of different sexual orientations; (d) in relation to the religion ground, C and D have different religious beliefs or C has a religious belief and D does not, orvice versa; (e) in relation to the age ground, C and D are of different ages; Appeals from the Director General of the Workplace Relations Commission to the Labour Court. 83. Section 44 of the Act of 2015 shall apply to a decision of the Director General of the Workplace Relations Commission undersection 79as it applies to a decision of an adjudication officer under section 41 of that Act, subject to the following modifications: (a) the substitution of the following subsection for subsection (1): ‘ (1) (a) A party to a case referred to the Director General of the Workplace Relations Commission under section 77 of the Act of 1998 may appeal a decision of the Director General given in an investigation in relation to that case under section 79 of that Act to the Labour Court and, where the party does so, the Labour Court shall — (i) give the parties to the appeal an opportunity to be heard by it and to present to it any evidence relevant to the appeal, (ii) make a decision in relation to the appeal affirming, varying or setting aside the decision of the adjudication officer to which the appeal relates, and (iii) give the parties to the appeal a copy of that decision in writing. (b) The Labour Court shall have power to grant such redress in an appeal under this paragraph as the Director General has power to grant in an investigation under section 79 of the Act of 1998. ’ ; and (b) any other necessary modifications. Burden of proof. 85A. — (1) Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary. (2) This section is without prejudice to any other enactment or rule of law in relation to the burden of proof in any proceedings which may be more favourable to a complainant. (3) Where, in any proceedings arising from a reference of a matter by the Authority to the F153 [ Director General of the Workplace Relations Commission] undersection 85(1), facts are established by or on behalf of the Authority from which it may be presumed that an action or a failure mentioned in a paragraph of that provision has occurred, it is for the respondent to prove the contrary. (4) In this section ‘discrimination ’ includes — (a) indirect discrimination, (b) victimisation, (c) harassment or sexual harassment, (d) the inclusion in a collective agreement to whichsection 9applies of a provision which, by virtue of that section, is null and void. (5) The European Communities (Burden of Proof in Gender Discrimination Cases) Regulations 2001 (S.I. No. 337 of 2001), in so far as they relate to proceedings under this Act, are revoked. Deliberation S. 85A of the Acts states that the burden of proof rests with a complainant in the first instance and that it is only if an inference of discrimination can be drawn from the facts that the burden shifts to a respondent. As was noted inMargetts v Graham Anthony Ltd, EDA038; ‘The mere fact that the complainant falls within one of the discriminatory grounds laid down under the Act is not sufficient in itself to establish a claim of discrimination. The complainant must adduce other facts from which it may be inferred on the balance of probabilities that an act of discrimination has occurred.’
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