Complainant

Respondent

Parties

Aimee O'Toole

Mr Price

Representatives

Niall MacCarthy of Gaffney Hallligan & Co Solicitors

Pat Collier of Collier Broderick

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-00045298-001

22/07/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00045298-002

22/07/2021

CA-00045298-001, complaint under the Employment Equality Acts is on the grounds of gender, age and sexual orientation in relation to conditions of employment, harassment and victimisation.

CA-00045298-002, claim under the Organisation of Working Time Act was withdrawn at the beginning of the hearing and I make no decision in relation to this complaint.

The complainant started working for the respondent on 13 May 2020 on a three month contract and, subsequently, on a permanent contract from 14 August 2020 as a sales assistant. She was based in the Coolock branch and submits she had no issue until January 2021.

The complainant entered into a relationship with a co-worker, who also worked in the Coolock branch, around October 2020.  They did not make their relationship public to other staff members. The store manager did not know about the relationship until January 2021, when she was informally told about it by the complainant’s mother, who also works for the respondent at another store. After finding out about the complainant’s sexuality and prior to a meeting on 25 March 2021 the manager treated the complainant differently. She asked the complainant about her sexuality and sex life, and commented on her appearance. The complainant denies there were any staff complaints about her and her partner in work and no issues arose about her performance.

 On 25 March 2021 the complainant commenced her shift at 1pm. Within 30 minutes the manager called her into the office for a meeting. The manager was extremely aggressive to the complainant and accused her of bullying another member of staff and called her a liar, two-faced and fake. When the complainant tried to speak she was shouted down by the manager. She was forced by the manager to sign a “resignation form”. She signed and left extremely upset by what had happened.

She submitted a written complaint the following day and forwarded it another member of the HR team on 29 March, as the first recipient was on leave. On this day she also submitted a written request for a transfer to the Santry store. An investigation meeting took place on 9 April, which briefly reviewed the written complaint and also refused her transfer request because of a “conflict of interest”, which she was told was because her mother was a keyholder in the Santry store. She was offered a transfer to Artane or Clarehall. An investigation outcome meeting took place on 1 May 2021 and the complainant was told that a thorough investigation took place but because of GDPR she could not be told what actions took place, but the grievance had been dealt with and the case was now closed. The complainant submits she did not appeal the outcome as she did not know what she was appealing.

Amazingly, the complainant was offered the chance to return to the Coolock branch and when she asked was told the same manager was still there.

The complainant’s legal representative requested details of the outcome but received no reply.

The complainant tendered her resignation on 11 May 2021 as she was not comfortable working in the stores offered and still did not understand why she could not be facilitated in Santry, and obviously could not return to Coolock. She then reluctantly agreed to the role in Artane and started work there on 24 May 2021. She went on sick leave due to stress and anxiety 2 days later. She returned to work in the Artane store on 7 October 2021.

The complainant submits she suffered adverse treatment because of her sexuality, gender and age (she was seventeen at the time of the incidents).

The respondent submits the complainant started work for them on 14 August 2020 as a Sales Assistant in the Coolock store and reported to the Manager. On 16 May 2021 she transferred to the Artane store. Two days later she went on sick leave. She returned to work in the Artane store on 7 October 2021.

In January 2021 the complainant’s mother told the store Manager about the complainant’s relationship with another staff member in the Coolock store. The Manager had not been aware of the relationship at the time.

On 15 March 2021 the complainant’s mother came to the Coolock store and told the Manager that she and her husband did not agree with the complainant’s relationship and asked the Manager to speak to the complainant about this. The Manager told the complainant’s mother this was a personal matter and not the role of the Manager. On another day the complainant came to work crying and asked to sit in the Manager’s office where she said her family asked her to break up with her partner. After speaking to her partner the complainant went home. Later that day the complainant’s partner came to the Manager’s office crying and also went home.

On 25 March the store Manager asked the complainant to a meeting to discuss allegations she had called the Manager a bitch and indicating she was not happy in the Goods-in role she had volunteered to do. The Manager disputes the meeting referred to the complainant’s relationship. The complainant left the meeting abruptly and the store Manager followed her and asked her to come back. The complainant then told the Manager that she was “f****** sick of this place and was leaving”. The Manager said she could resign if she wanted to, and the complainant resigned that day. Prior to this meeting the Manager did speak to the complainant and her partner together about not allowing personal relationships to impact on their work. 

On the following day the complainant sent an email to HR withdrawing her resignation, requesting a transfer to Santry (where her mother was working) and raising a grievance. The resignation withdrawal was accepted and the respondent commenced an investigation into the grievance commenced on 6 April 2021. Investigation meetings with the complainant and the complained of took place on 9 April 2021.

The outcome meeting was held on 1 May 2021 and the complainant was told the matter had been dealt with under the company disciplinary policy. The complainant’s grievance insofar as it concerned anything to do with her sexual orientation was not upheld. The complainant did not appeal the outcome of the investigation.

The complainant was provided with an opportunity to transfer but was told that because her mother worked as a key holder in Santry they could not accommodate her request to transfer there. She was offered the opportunity to transfer to Artane or Clarehall or another store the complainant would propose. The complainant said her preference was Santry. She was told there were no vacancies in Santry. The complainant did start work in Artane on 16 May 2021. She went on sick leave two days later. She returned to work in the Artane store on 7 October 2021.

The respondent submits the complainant has given no details regarding any act or behaviour that could be described as victimisation, harassment or discrimination on the gender, sexual orientation or age grounds under the Employment Equality Act.

The Complainant is claiming that she was discriminated against in relation to conditions of employment, that she was harassed and that she was victimised on the gender, sexual orientation and age grounds pursuant to the Employment Equality Acts which states:

“6.—(1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances, 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 subsection (2) (in this Act referred to as the ‘‘discriminatory grounds’’)”

Section 6(2) provides that as between any two persons, the discriminatory grounds are, inter alia:

(a) that one is a woman and the other is a man (in this Act, referred to as ‘‘the gender ground’’),

(d) that they are of different sexual orientation (in the Act referred to as “the sexual orientation ground”)

 (f) that they are of different ages (in this Act referred to as “the age ground”)”

The complainant gave direct evidence at the hearing that from January 2021 the atmosphere with her Manager changed and she did not communicate with her directly. In cross examination she said in the period from January to March 2021 she had no arguments with the Manger and could talk to her. She also gave evidence that the Manager did talk to her about the relationship with her partner at the meeting at the meeting on 25 March 2021 and she also said she was forced to resign by the Manager. These issues caused her to raise a grievance.

The complainant’s mother gave evidence that on 14 January 2021 she told the Manager about her daughter’s relationship and the Manager was surprised. Then on 15 March 2021 she went to the Manager for advice on a work issue and the Manager brought up her daughter’s relationship and was derogatory about her partner’s appearance, also she said she did not like the complainant’s hair. In cross-examination the complainant’s mother said that she asked the Manager to talk to her daughter and ask her if this was what she really wanted. The complainant’s mother said she did this because the Manager had a great relationship with her daughter.

The complainant’s partner gave evidence that in January or February 2021 she spoke with the Manager who advised not to let the relationship interfere with work. She also said that the Manager’s attitude changed when she found out about the relationship between herself and the complainant.

The Manager gave evidence that in January 2021 she went to the Santry store and the complainant’s mother told her she was devastated as she had just found out about her daughter’s relationship. The Manager said she could not discuss something about another staff member. In March 2021 she got a text from the complainant’s mother that she wanted to talk about something and the Manager replied she could not talk about another staff member.

The Manager also gave evidence that at the end of January or into February 2021 she saw the complainant was upset about something so she took her into her office where the complainant said her family wanted her to break up with her partner. Then the complainant went home. A little while later the complainant’s partner came to see her and said she wanted to go home.

The Manager said the complainant was a “great employee”. She had volunteered to cover a goods-in role for 4 weeks but after one week had complained it was too hard, but the Manager told her she had no other volunteers to make a change. After this the Manager heard from other members of staff that the complainant had referred to her as a “bitch”. She brought the complainant into a meeting on 25 March 2021 and asked her if she had said it but the complainant denied it. The Manager said this conversation became really emotional and then the complainant said she wanted to resign. The following day the complainant’s father came to the store and abused her

In cross-examination the Manager said the complainant was a good employee. The complainant’s mother told her about the complainant’s relationship and that she was devastated about it. She denied asking the complainant any discriminatory questions or making any discriminatory comments about her.

From all the evidence that was given it appears that the complainant’s relationship caused issues within her family and her mother came to the Manager for help. I accept the Manager’s evidence that she told the complainant’s mother this was a private matter and not something she would get involved in. I conclude on the balance of the evidence given that the Manager and the complainant had a good working relationship up to the meeting on 25 March 2021. That meeting was called because the Manager had been told by other staff members that the complainant had called her a “bitch”. It appears the complainant was upset because the Manager would not move her out the temporary goods-in role she had volunteered for. The Manager and the complainant had a heated discussion and the complainant resigned and walked out. I conclude that this exchange was not related to the complainant’s gender, sexual orientation or age. 

Regarding the claim of discrimination in relation to conditions of employment, section 8 (6) of the Employment Equality Acts states: “Without prejudice to the generality of subsection (1), an employer shall be taken to discriminate against an employee or prospective employee in relation to conditions of employment if, on any of the discriminatory grounds, the employer does not offer or afford to that employee or prospective employee or to a class of persons of whom he or she is one—

(a) the same terms of employment (other than remuneration and pension rights),

(b) the same working conditions, and

(c) the same treatment in relation to overtime, shift work, short time, transfers, lay-offs, redundancies, dismissals and disciplinary measures,

as the employer offers or affords to another person or class of persons, where the circumstances in which both such persons or classes are or would be employed are not materially different.”

The complainant referred to the way her grievance was dealt with and the way her transfer request was dealt with as the conditions of employment she suffered discrimination. The respondent’s evidence in relation to the processing of her grievance does not lead to any inference of discrimination. The respondent gave evidence they had a policy that usually two family members, where one was a key holder, could not work in the same branch. It was not a written policy and was not rigidly observed. However, I conclude the way the complainant’s transfer request was dealt with was not influenced by her gender, sexual orientation or age.

I have to decide if the complainant suffered harassment in accordance with the Employment Equality Act on the grounds of gender, sexual orientation and age.

Section 14A of the Act provides: -

(1) For the purposes of this Act , where—

(a) an employee (in this section referred to as “the victim”) is harassed or sexually harassed either at a place where the employee is employed (in this section referred to as “the workplace”) or otherwise in the course of his or her employment by a person who is—

(i) employed at that place or by the same employer,

(ii) the victim's employer, or

(iii) a client, customer or other business contact of the victim's employer and the circumstances of the harassment are such that the employer ought reasonably to have taken steps to prevent it, or

(b) without prejudice to the generality of paragraph (a) —

(i) such harassment has occurred, and

(ii) either—

(I) the victim is treated differently in the workplace or otherwise in the course of his or her employment by reason of rejecting or accepting the harassment, or

(II) it could reasonably be anticipated that he or she would be so treated,

the harassment or sexual harassment constitutes discrimination by the victim's employer in relation to the victim's conditions of employment.

(2) If harassment or sexual harassment of the victim by a person other than his or her employer would, but for this subsection , be regarded as discrimination by the employer under subsection (1) , it is a defence for the employer to prove that the employer took such steps as are reasonably practicable—

(a) in a case where subsection (1)(a) applies (whether or not subsection (1)(b) also applies), to prevent the person from harassing or sexually harassing the victim or any class of persons which includes the victim, and

(b) in a case where subsection (1) (b) applies, to prevent the victim from being treated differently in the workplace or otherwise in the course of the victim's employment and, if and so far as any such treatment has occurred, to reverse its effects.

In this case before me I conclude from the evidence presented to me that there were no incidents before the meeting on 25 March 2021 that I should consider as possible harassment. As stated above I conclude that the exchange at that meeting was heated but was not related to her gender, sexual orientation or age. I also conclude that the respondent carried an investigation into the complainant’s grievance and thereby satisfied the defence in section 14A (2) of the Employment Equality Act. Therefore, I find that harassment did not take place, within the meaning of the Act

 Section 74 (2) of the Employment Equality Acts states: “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,”

The complainant’s grievance to the respondent amounts to a “complaint of discrimination”. The complainant contends the way her transfer request was dealt with amounts to “adverse treatment” and, because she had made a complaint of discrimination, amounts to victimisation.

The respondent says they dealt with the transfer request as they would do any other transfer request. As stated above, the respondent does not have a written transfer policy and evidence from the hearing indicates any verbal policy is not implemented strictly or consistently. However, I can find no inference that the complainant’s transfer request was dealt differently because she had made a complaint of discrimination.

For the reasons given above I find that the complainant did not suffer discrimination in relation to conditions of employment, was not harassed and was not victimised on the grounds of gender, sexual orientation and age grounds pursuant to the Employment Equality Acts.

No discrimination