Complainant

Respondent

Parties

Orla  O'Keefe

Realmside Ltd, Hyatt Centric

Representatives

Derek Dunne BL, instructed by  Kearns Heffernan Foskin Solicitors

 Did not attend

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-00039400-002

27/08/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00039400-003

27/08/2020

The complainant commenced employment with the respondent o 04/06/2019 as Director of Sales for the new Hyatt Centric Hotel.  She was issued with a contract of employment and her gross salary during year two was €65,000. In March 2020 the respondent agreed to a pay cut on the basis that this would help ensure there were no job losses.  Due to the COVID-19 pandemic the hotel was closed on 20/03/2020.  The complainant was requested to undertake a range of additional duties.  She was not given any written notification of these changes. The complainant informed the Human Resources Manager (Ms K) on 06/05/2020 that she was pregnant.  She also informed the Commercial Director (Mr A) about her pregnancy. On 27/05/2020 the complainant was asked to attend a meeting at very short notice.  At this meeting she was told that her post was being made redundant and her employment was subsequently terminated on 05/06/2020.  Prior to the COVID-19 pandemic she was paid €1,154.01 gross per week (€807.34 nett).  The complainant submitted her complaints to the WRC on 27/08/2020.

The complainant has worked in the hotel and hospitality sector and provided the hearing with details of her qualifications and experience both in Ireland and Canada.  She worked her way up to senior levels and was headhunted by the respondent for the position of Director of sales which she took up on 04/06/2019.    She successfully completed her probationary period and never had any issues in relation to her conduct or performance.  On 09/03/2019 the CEO of the organisation asked all employees in managerial positions to accept a pay cut with the objective to protect all staff.  This request was made on the basis that job losses were not an option.  While there was no provision in the complainant’s contract of employment for a salary reduction the complainant agreed to accept the pay of 15% cut based on the respondent’s assurance that this would mean that job losses would be avoided. In practical terms the result of this for the complainant was that she was receiving €1,154.01 gross (€807.34 nett) pay per week prior to the pay cut.  From 07/03/2020 the complainant was on placed on a three-day week and paid €500 per week which consisted of a payment of €350 from the temporary wage subsidy scheme and a €150 top up from the respondent.  On 03/04/2020 she was requested to work a 5-day week due to the increased demands on the roles she was then covering.  At that time, she was paid €550 per week which consisted of a payment of €350 from the temporary wage subsidy scheme and €200 from the respondent.  She worked 39 hours per week.

Due to the COVID-19 lockdown measures put in place by the Government the hotel was closed to the public on 20/03/2020. The respondent requested the complainant to undertake a significant number of additional duties and responsibilities.  The complainant agreed to take on these in addition to her normal duties.  In addition to these she was required to also cover the front desk, attend to security matters and deal with construction workers who were working in the hotel. The complainant submits that she was never notified in writing of these changes to her role.

On 06/05/2020 the complainant informed the Human Resources Officer that she was pregnant.  The HR Officer undertook to provide her with the respondent’s maternity leave pack, but this was not done.  The complainant also informed the Manging Director of her pregnancy the same day and informed the Commercial Director on 08/05/2020.

On 27/05/2020 while covering the reception area the complainant was asked to meet with the Managing Director and HR Officer.  She was given no advance notice of the meeting or informed of the purpose of the meeting.   At this meeting she was informed by the Managing Director that her position was no longer “financially viable” and that she was being made redundant with effect from 05/06/2020.  In her evidence the complainant confirmed that she received no explanation in relation to the reasons behind “financially viable” and was not afforded any opportunity to make representations on her own behalf.  The complainant was not afforded the opportunity to have any representation at the meeting.  The complainant was not invited or given any opportunity to engage with the respondent in relation to the proposed redundancy.  There was no appeal process given to the complainant.

The complainant in evidence confirmed that she was presented with a decision to make her redundant at the meeting on 27/05/2020.  She was not given any grounds in writing for her dismissal by reason of redundancy. She was never given any information in relation to the selection process and the respondent did not explore or discuss the question of redeployment within the respondent’s organisation as an alternative to redundancy.  The complainant was not offered short time or lay-off as an alternative.

The complainant in her evidence confirmed that she understood the challenges posed by COVID-19 and was willing to consider redeployment within the Hotel Group or any other alternatives but the respondent did not discuss, explore or offer any alternatives to redundancy.

The complainant was not aware that any other employee in the hotel group was considered or selected for redundancy and no other employee in the sales/commercial team at the hotel was considered or selected for redundancy.  The complainant is aware that the respondent has a number of other hotels within the organisation and to the best of her knowledge the two other Director of Sales roles were not considered or selected for redundancy.

The complainant provided evidence that since her dismissal the respondent recruited new employees to positions in the hotel.  The complaint believes that she was qualified for these roles.  The hotel advertised a Head of Sales in June 2021 which had responsibility across the hotel group for corporate and International MICE business and based in the same hotel where the complainant was based.  The complainant provided the hearing with details of the roles and responsibilities which were in the advertisement.  It is the complainant’s position that this role corresponds exactly with the role she held as Director of Sales.

It is the complainant’s position that the alleged redundancy was not genuine, and the respondent discriminatorily dismissed her on the and that grounds of gender and family status.  The complainant believes that the respondent’s conduct towards her was unfair and unreasonable and that no reasonable employer would have dealt with the termination of the complainant’s employment in the manner which occurred in this case.

The complainant Employment Equality Acts Form EE.2 was sent to the respondent on 06/07/2020.  No response was received prior to the complainant submitting her complaint to the WRC on 27/08/2020.

The complainant provided evidence of her attempts to obtain alternative employment since her dismissal.  She was on maternity leave from October 2020 until June 2021.  She applied for a considerable number of roles and she obtained no response from approximately 90% of these applications.  Due to her dismissal she had to relocate and has suffered financial and non-financial loss and damage as a result of the dismissal.  Her dismissal at that time made it difficult for her to obtain employment in her chosen career in the hotel industry.  She had attained a senior role in that industry and her basic salary was €26 per hour.  She expects to take on a role when the COVID-19 restrictions ease and this will be a three-day week with a gross pay of €15.80 per hour.  The complainant is suffering an on-going loss as a result of her discriminatory dismissal.

A number of legal submissions were made on behalf of the complainant.

The termination of the complainant’s employment was a discriminatory dismissal on the grounds of gender and family status pursuant to the Employment Equality Acts 1998 to 2021 (“the Acts”).  Section 6(1) and 6(2) of the Acts provide:

(1)    Discrimination shall be taken to occur where “a person is treated less favourably than another person is, has been or would be treated as a comparable situation on any of the grounds specified in subsection (2)

(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”).

Section 6(2A) of the Acts provides:

            “Without prejudice to the generality of subsections (1) and (2), discrimination of 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 or would be treated”.

The provisions of these Acts reflect the special protections against discriminatory on the grounds of pregnancy and maternity as afforded by EU law.  The complainant’s representative submitted that there is a line of authorities that has clearly and consistently held that since pregnancy is a uniquely female condition, any adverse treatment of a woman on the grounds of pregnancy and is direct discriminatory on the ground of her sex.  The decision of the Court of Justice of the European Union (“CJEU”) Dekker v Stichting Vormingecentrum voor Volwassenen [1990] ECR 1-3841 was opened to the hearing.  In this case the CJEU held:

“It should be noted that only women can be refused employment on grounds of pregnancy and such a refusal therefore constitutes direct discrimination on grounds of sex.  A refusal of employment on account of the financial consequences of absence connected with pregnancy must be regarded as based, essentially, on the fact of pregnancy.  Such discrimination cannot be justified on grounds relating to the financial loss which an employer who employed a pregnant woman would suffer for the duration of the maternity leave.

The respondent’s representative also submitted that equality on the grounds of gender is also expressly guaranteed by Article 23 of the Charter of Fundamental Rights of the European Union.  As the Charter is now incorporated into the Treaty on the Functioning of the European Union it has the same legal standing as all preceding and current Treaties and is properly regarded as part of the primary legislation in the EU.  Article 33.2 of the Charter also prohibits dismissal on grounds of pregnancy:

“To reconcile family and professional life, everyone shall have the right to protection from dismissal for a reason connected with maternity and the right to paid maternity leave and to parental leave following the birth or adoption of a child”.

It was submitted that the EU law that discrimination on the grounds of pregnancy constitutes direct discrimination on the grounds of sex and this is codified in Directive 2006/54/EC on the Principle of Equal Treatment of Men and Women (“the Recast Directive”).  This Directive provides, at Article 2.2(c), that any less favourable treatment of a woman related to pregnancy or maternity leave within the meaning of Directive 92/85/EEC (“the Pregnancy Directive”) constitutes unlawful discrimination for the purpose of the Pregnancy Directive   A number of cases have confirmed this position.  In Case 406/06, Paquay v Societe d’Architectes Hoet + Minne SPRL [2007] ECR 1-8511, the CJEUheld at paragraph 29:

“29.  Before Directive 92/85 came into force, the Court had already held that, under the principle of non-discrimination and, particularly, Articles 2(1) and 5(1) of Directive 76/207, protection against dismissal should be granted to women not only during maternity leave, but also throughout the period of pregnancy.  According to the Court, a dismissal occurring during those periods affects only women and therefore constituted direct discrimination on the grounds of sex …”

The complainant’s representative submitted that it is clearly a matter of EU and domestic law that a pregnant woman cannot be dismissed at any time from the beginning of her pregnancy to the end of her maternity leave save in exceptional cases not connected with pregnancy and maternity, provided that the employer gives substantiated grounds for the dismissal in writing.  This was considered by the Labour Court in Trailer Care Holdings Ltd v Deborah Healy (EDA/128) which held:

“it is abundantly clear from these authorities, and from the legislative provisions of the European Union, that women are to be afforded special protection from adverse treatment, and in particular from dismissal on account of their condition, from the commencement of pregnancy until the end of their maternity leave.  The entitlement to that protection is to be regarded as a fundamental and inviolable right within the limits of their jurisdiction.  It seems equally clear that where a pregnant woman is dismissed during this period of special protection the employer bears the burden of proof, on cogent and credible evidence, that the dismissal was in no sense whatsoever related to her pregnancy.  This is a matter that the Court will consider further in addressing the application of the burden of proof in cases such as the instant case”.

There were a number of other cases opened at the hearing which confirm that in cases involving an alleged discriminatory dismissal on the grounds of pregnancy, the factual combination of the employee’s pregnancy and the dismissal of the employee during her pregnancy and in and of itself places the onus squarely upon the employer to prove that discrimination on the grounds of pregnancy did not occur.  These cases were Wrights of Howth Seafood Bars Ltd v Dorota Murat, (EDA1728); O’Brien v Persian Properties trading as O’Callaghan Hotels (DEC-E2012-010); Assico Assembly Limited v Corcoran (EED033).  It was submitted on behalf of the complainant that where the employer does not discharge the onus of proving that the dismissal of an employee during her pregnancy was not connected with her pregnancy the dismissal is a discriminatory dismissal on the grounds of gender and family status and the employee is entitled to redress that is effective; that has a genuine dissuasive effect with regard to the employer; and is commensurate with the injury suffered by the employee as result of the discriminatory dismissal on the grounds of pregnancy.

It was submitted on behalf of the complainant that the respondent has not discharged the burden of proving that the complainant was dismissed on exceptional grounds completely unconnected with the complainant’s pregnancy and is therefore entitled to succeed in her complaint of discriminatory dismissal on the grounds of gender and family status under the Employment Equality Acts 1998-2021.  The genuineness of the alleged redundancy must be looked at.  The Redundancy Payments Acts define redundancy.  The facts of this case do not meet the definition of redundancy.  The respondent has failed to identify any exceptional, economic, technical or organisational reasons for the redundancy.  The role the complainant had was an important function in the hotel.  It was intrinsic to maintaining and developing the business.  Given the impact of COVID-19 on the industry such a role was necessary and the fact that the respondent advertised a similar role in June 2021 confirms this.  The complainant submitted evidence of a published interview given by the respondent’s group commercial director shortly after the complainant was notified of her redundancy.  In this interview in June 2020 the commercial director was quoted as saying “the pipeline of business was the strongest we have seen in years” and that bookings were high.  He was also quoted as saying that from the end of June 2020 “slowly and surely we are bringing back the crew … we are blessed with our staff and their loyalty and commitment is hard to describe”.

It was submitted on behalf of the complainant that the respondent did not deal with the dismissal of the complainant in a fair or reasonable manner and the respondent’s conduct towards the complainant was unreasonable and unfair.  The respondent did not consult with the complainant concerning the alleged redundancy.  The respondent did not give the complainant any warning or notice that her position was at risk of redundancy. The respondent did not give inform the complainant in advance of the purpose of the meeting on 27/05/2020.  The respondent did not fairly select the complainant for redundancy and the respondent failed to establish or follow any objective criteria in selecting the complainant for redundancy.  The respondent did not consider, identify or offer any alternatives to redundancy before making the decision to dismiss the complainant.  The respondent did not have any appeal process. The respondent failed to follow its own policy and procedure in relation to redundancy.  When taken together these clearly demonstrate and prove that the alleged redundancy was not genuine. 

The respondent’s representative cited a number of cases in relation to how an employer handled the dismissal of a pregnant employee.  In particular, the case of Trailer Care Holdings v Deborah Healy (EDA128) the complainant was merely informed of the decision to dismiss her and was given no opportunity to make representations on her behalf.  The Labour Court in that case found that no reasonable employer acting bona fide would have behaved in such a manner.  It was submitted that the position in this case is identical to the facts of this instant case.

The respondent or any representative on its behalf did not attend the hearing or make any effort to explain their non-attendance.  The respondent submitted a letter to the WRC on 23/11/2020.  However, as the respondent failed to attend the hearing to adduce oral evidence in relation to the complaints, I was not in a position to verify or test the details contained in that letter and, therefore, I do not attach any weight to that submission.

CA-00039400-002:  Complaint seeking adjudication by the WRC under section 77 of the Employment Equality Act 1998.

The Legal Framework:

The legal framework prohibiting discrimination on nine grounds is set out at section 6(1) of the Employment Equality Act 1998-2015 (“the Act”).

“discrimination shall be taken to occur where  –

(a)    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 sub-section (2), in this Act, referred to as the ‘discriminatory grounds’ …”

At subsection (2) (a) the gender ground is listed as one of the nine discriminatory grounds.  This this case the complainant submits that she was discriminated against because of her gender.

Section 6(2A) of the Acts (as inserted by s.4(b) of the Equality Act 2004) provides:

“without prejudice to the generality of subsections (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 is treated, contrary to any statutory requirement, less favourable than another employee is, has or would be treated”.

The Burden of Proof:

The Equality Acts 1998-2015 state:

“85A (1) Where in any proceedings, facts are established by or on behalf of a complainant, form 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”.

Thus, the effect of this section is that the complainant must first establish facts which, on initial examination, lead to a presumption that discrimination has occurred.    This has been succinctly explained by the Labour Court in a decision on Arturs Valpeters v Melbury Developments [2010] 21, ELR64:

“This required that the complainant must first establish facts from which discrimination may be inferred.  Who those facts are will vary from case to case and there is no closed category of facts which can be relied upon.  All that is required is that they be of sufficient significance to raise a presumption of discrimination.  However, they must be established as facts on credible evidence.  Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn.  Section 85A places the burden of proof fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule”.

The Primary Facts:

At the hearing of this complaint, the following primary facts emerged:   

1.        The complainant as a holder of a senior managerial position agreed to a pay cut on the basis that job losses were not an option for the respondent.  This request was issued on 09/03/2020.

2.       The complainant became aware that she was pregnant in March 2020.

3.       The complainant informed the Human Resources Officer on 06/05/2020 that she was pregnant.

4.       The complainant informed the Managing Director that she was pregnant on 06/05/2020.

5.       The complainant informed the Commercial Director that she was pregnant on 08/05/2020.

6.       The complainant was informed on 27/05/2020 that she was being made redundant from 05/06/2020.

7.       The complainant was not given any prior notice of that meeting on 27/05/2020 and was not given the opportunity to have representation at the meeting.

8.       The complainant was not given any information in relation to her selection for redundancy or the option to look at redeployment, layoff or any other alternative to redundancy.

9.       The complainant was not given any opportunity to explore any options or otherwise discuss the decision to make her redundant.

10.   The complainant was the only person to be made redundant.

11.   The respondent advertised roles which would be suitable to the complainant in July 2020 and did not offer the complainant any opportunity to consider this.

12.   The respondent advertised a role similar to that of the complainant in June

13.   The respondent failed to comply with Article 10.2 of the Pregnancy Directive as they failed to provide the complainant with substantiated grounds for her dismissal.

I find that the complainant’s evidence is of sufficient significance to raise a presumption of discrimination.  As a result, the responsibility for proving that discrimination did not occur shifts to the respondent.  This is the starting point for this case.  The respondent did not attend to rebut any inference of discrimination and in the absence of any evidence to the contrary the inference of discrimination has not been rebutted.

It is a matter of EU and Irish law that maternity leave unless there are exceptional cases not associated with pregnancy and maternity. In such cases the employer is legally obliged to give substantiated grounds for the dismissal in writing to the employee.  As previously noted the respondent did not give an evidence in this case.  The only evidence was a letter which the respondent sent to the WRC on 11/11/2020 and as I was not in a position to verify or test the details contained in that letter at the hearing I do not attach any weight to that submission.

The complainant did not receive any written correspondence from the complainant in relation to her selection for redundancy and that the position she held was no longer “financially viable”.  I find that the failure of the respondent to provide written details to the complainant that her dismissal was for substantial grounds not connected with her pregnancy and maternity leads me to find that this was a discriminatory dismissal based on the complainant’s gender.  The respondent has failed to prove that the complainant’s dismissal by reason of redundancy was unconnected with her pregnancy.

In view of this finding the complainant is entitled to redress that is effective; that has a genuine dissuasive effect with regard to the employer; and that is commensurate with the injury suffered by her.   The complainant provided evidence of her attempts to mitigate her loss and the difficulties in obtaining a senior position within the hotel and hospitality industry.  The COVID-19 pandemic also affected the industry.  The complainant has a loss of earnings, loss of her statutory right to maternity leave, and clearly suffered a lot of stress and distress as a result of her dismissal.  The complainant had to relocate as a consequence of her dismissal.  The complainant is due to commence work on a three days per week basis and will receive pay of €15.0 per hour for 20 hours per week.

I do not consider that reinstatement or reengagement are appropriate in this case. The complainant was earning gross pay of €1,154.01 per week prior to the temporary reduction in her salary.  I therefore considered the complainant’s present loss, future loss and her loss of statutory protection, and the  effects of the dismissal on the complainant and to ensure that there is a dissuasive effect with regard to the employer I award her the sum of €85.000.  

CA-00039400-003:  Complaint seeking adjudication by the WRC under section 7 of the Terms of Employment (Information) Act, 1994

Section 5(1)(a) of the Terms of Employment (Information) Act 1994 provides that whenever a change is made to any of the particulars of the statement which is furnished by an employer under ss. 3, 4 or 6, the employer shall notify the employee in writing of the nature and date of any change as soon as may be thereafter, but not later than one month after the change comes into effect.

It was submitted on behalf of the complainant that the duties and responsibilities that she was required to undertake in March 2020 represented a change to her terms and conditions and that the resident was under an obligation to notify the complainant in writing of these changes.

From the evidence adduced at the hearing it is clear that there were significant changes required in the workplace as a result of the COVID-19 pandemic.  As a senior member of staff, it would be incumbent on the complainant to realign her duties due on the unprecedented situation which required flexibility from all employees.  In most business the rules and regulations which were imposed required a radically different approach which would have an obvious impact on the complainant’s role and duties.

The complainant was asked to focus on the changed workplace due to COVID-19 and the rules and regulations which encompassed health and safety measures which were introduced during the pandemic. All of the changes which occurred at that time were attributable to the requirement to adapt to the COVID-19 pandemic. In that context I do not accept that the respondent was in breach of the Terms of Employment (Information) Act, 1994 and I find that this complaint is not well founded.

CA-00039400-002: Based on the uncontested evidence of the complainant I find that the respondent has failed to prove that the complainant’s dismissal by reason of redundancy was unconnected with her pregnancy and therefore she was discriminatorily dismissed.  I award her the sum of €85,000.

CA-00039400-003: I find that this complaint is not well founded.

Discriminatory dismissal.