The Employment Equality Acts 1998 and 2004
Eurozone Investment Options Limited
(represented by Kiwana Ennis B.L. instructed by Lavelle Coleman Solicitors)
File No: EE/2004/249 Date of issue: 21 February 2007
1.1 The case concerns a claim by Ms. Lucia Lawless that Eurozone Investment Options Limited, Dublin, directly discriminated against her on the grounds of gender, marital status and family status in terms of section 6(2)(a), (b) and (c) of the Employment Equality Acts 1998 and 2004 in contravention of section 8 of the Acts in relation to dismissal.
2.1 The complainant submits that the respondent was not happy with her getting married shortly after she commenced employment with the company. She also submits that she was questioned by her colleagues in relation to her plans to have children and she believes that the questions were directed to her because she was a married female in her thirties. She alleges that her dismissal was based on the gender, marital status and family status grounds. The respondent denies the complainant's allegation of discrimination and submits that the termination of her employment was carried out in circumstances where the job undertaken by the complainant was being outsourced to facilitate the good health of the respondent's Managing Director.
2.2 The complainant referred a complaint under the Employment Equality Acts 1998 and 2004 to the Tribunal on 22 October 2004. On 1 March 2006, in accordance with her powers under section 75 of that Act, the Director delegated the case to Mary Rogerson, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Act. A submission was received from the complainant on 11 April 2006. A submission was received from the respondent on 12 June 2006. A joint hearing of the claim was held on 6 December 2006. A supplementary hearing in relation to the matter was held on 6 February 2007.
3. SUMMARY OF THE COMPLAINANT'S SUBMISSION
3.1 The complainant submits that she did three interviews for a position on the sales team in 2003. She submits that at her second interview she mentioned that she had got engaged since the last time they met. She received a formal job offer on 12 June 2003 and when she returned the contract, she mentioned her plans to get married in September. She submits that Ms. Mc A, the Property Adviser was very annoyed and implied that she deliberately withheld the information. The complainant commenced employment on 14 July 2003. Ms. Mc A advised her that both she and Mr. K (the Managing Director) believed that she deliberately withheld the information in relation to her marriage.
3.2 She submits that she got off to a bad start and there was never a good time to take holidays whereas the company was completely flexible regarding holidays given to other staff. She submits that she was given three weeks annual leave for her wedding, some paid and some unpaid. Before going on honeymoon, she submits that she was asked to put potentially interested clients on a waiting list for apartments that were already provisionally sold. When she came back to work, she was accused of monopolising apartments by her fellow sales colleagues.
3.3 The respondent held property exhibitions at various locations around the country. The exhibitions were held at weekends, Saturdays and Sundays. When she inquired if time was given in lieu of weekends worked, she was told that no time off in lieu was offered and no payment was made. She asked if it were possible to get time off in lieu for everyone and it was granted. She submits that she attended a chiropractor around the corner from the office once or twice a week which would take 20-30 minutes maximum. She states that she always made up the time by working late or through her lunch. She submits that she heard from another member of staff that Ms. O' R, PA to the Managing Director that he had a problem with her taking time off.
3.4 The complainant submits that the Managing Director, Mr. K asked her if she could recommend someone for the position of selling property in Croatia and she recommended someone she had worked with previously, Ms. F. She submits that Mr. K asked her if she was single or if she had any ties. She submits that he also joked about whether she was good looking. She submits that Ms. F was asked at interview if she was single.
3.5 The complainant submits that she was asked to go to Budapest on behalf of the company. Then she was told that the company did not need her to go. As she needed to go to Budapest herself for personal reasons, she requested three days holiday to go. She submits that during the three days that she was there, she was harassed by the company and messages were left in the hotel reception for her to contact the company. She submits that the company wanted her to stay on in Budapest and offered to pay the difference in her return flight home. She submits that when she returned to Dublin after her three days holidays, she was ignored by staff there, in particular, by Ms. McA.
3.6 The complainant submits that she went to Budapest on 22 March for the week. She met with a colleague on the Monday for a few hours to orientate her with the developments and the running of the office. She submits that the fact that she asked for a return date to be confirmed before she went was considered inflexible. She submits that Ms. Mc A left in April 2004 and she was told that she would be next in line for promotion the following January. She offered to take on extra responsibilities but none were given to her. She submits that on three occasions, her plans for having children were raised. She submits that she was firstly questioned by Ms. Mc A, then Ms. O' R and then Mr. W raised the issue with her. She submits that the issues were raised because she was a married female in her thirties.
3.7 The complainant submits that on 30 April 2004, she was informed that herself and another female, Ms. F were being made redundant. The Managing Director informed her that it was due to his ill health. She submits that a new receptionist was taken on a week or two later and Ms. M was promoted to work in Budapest. She submits that she was also informed that Mr. K was closing the Eurozone office but two years later, it is still in business.
3.8 The complainant submits that she has attended interviews since with competing companies and was offered a short term contract with Mr. MK of another overseas property investments company. Then suddenly for no apparent reason, she did not hear further from him. She submits that she also had an interview with a firm of Auctioneers who also said they would get back to her with an offer but subsequently did not.
3.9 She submits that she was under huge financial pressure and on 14 June 2004 she met with Mr. K in his office and she was offered her old job back with a basic salary of €10,000 less than she had previously been earning. She submits that he told her he could only offer her week to week work and she would have to sign a confidentiality clause and a clause promising not to take him to court for unfair dismissal. She was also told that she would have to be more flexible about her hours. She submits that she had passed on the name and number of an IT person who worked on a contract for the respondent after obtaining approval from Mr. W of the respondent.
3.10 The complainant submits that she later advised the respondent after receiving a text from Mr. K that she would not be going back to work as she had already rented out her house to reduce her outgoings so coming back to work for him with no long term guarantees was not practical for her. She submits that she was not paid the outstanding monies she was owed until September 2004.
3.11 The complainant submits that she has not worked since working for the respondent and that she is no longer a competent and confident salesperson. She submits that she never had any problems securing employment prior to her time working with the respondent and she now feels that her chances of gaining employment in the sales area have been severely lessened as a direct result of the experience.
4. SUMMARY OF THE RESPONDENT'S SUBMISSION
4.1 The respondent is a European developer and marketing agent that provides professional advice to investors seeking to purchase properties abroad. Its main business is the assisting of clients wishing to purchase properties throughout certain countries in Europe and it has offices in Dublin and Budapest. It currently has fifteen employees including the Managing Director, Mr. K. It submits that of the fifteen employees, eleven are female, three are married, two have children, one is pregnant and one is engaged to be married.
4.2 The complainant commenced employment with the respondent on 14 July 2003 and worked with the sales team which comprised three persons. Mr. W and Ms. Mc A were the other members of the team. By letter dated 30 April 2004, the complainant was advised by the MD that her contract of employment was being terminated. The reason for the termination was due to the MD's ill health and the advice he received from his doctor to the effect that he needed immediately to reduce his workload and levels of stress. In the circumstances, he reached a decision to outsource the work done by the sales team which resulted in the termination of the complainant's contract. The complainant was given four weeks notice and the date of termination was 28 May 2004. The respondent furnished the complainant with a reference dated 7 May 2004 which accurately describes the respondent's opinion of the complainant as an employee.
4.3 In relation to the respondent's failure to provide a job description for the complainant with her contract, this was an administration error and was not intentional. The respondent denies the complainant's claim that it had an issue with the fact that she was due to get married in September 2003. It submits that the fact that the offer of employment was not revoked and it was never the intention of the respondent to do so, undermined the complainant's claim in this regard. The respondent rejects the complainant's claim that she was treated differently in relation to her annual leave. The complainant's contract provided that four weeks notice of proposed holiday dates must be given which must then be agreed by the respondent. A flexible approach was adopted in relation to granting annual leave notwithstanding that four weeks notice was not given.
4.4 The complainant was granted 15 days of paid annual leave and five days of unpaid leave from 22 September to 20 October 2003 notwithstanding that this was just over two months after the complainant commenced employment with the respondent. The complainant was generally granted leave when she requested it, however, on one occasion she was refused as she requested 15 days annual leave and as a general rule, the respondent prefers its employees not to take in excess of two weeks continuous leave as it puts the other two members of the sales team under additional pressures. The complainant refers to one occasion on which Mr. W booked and paid for holidays without prior approval. This is not disputed by the respondent. However, it was made clear to Mr. W that he was subject to the same procedure with respect to annual leave as all other employees.
4.5 The complainant submits that when she returned from honeymoon, she was accused of "monopolising apartments" by the other members of the sales team. This referred to the fact that the complainant would put clients on a number of waiting lists in various developments whereas the other sales team members would generally put a client on one list only. It is accepted by the respondent that there was an issue with respect to the manner that the complainant was operating the waiting list procedure. Other members of the sales team raised this issue with the complainant in an informal way and an amiable agreement was reached.
4.6 The holding of property exhibitions at weekends was a relatively new practice at the time the complainant commenced employment and the matter of time off in lieu being granted had not been addressed at the time. When the complainant raised the matter, the respondent immediately agreed to the request and had no issue with the matter. The respondent had no issue with the complainant's appointments with the chiropractor or indeed any other appointments or personal leave requested by the complainant. The contention by the complainant that the respondent did not notice the complainant making up for lost time is also rejected and this is evidenced by the amount of time granted to the complainant. The respondent also had no issue with the complainant's timekeeping.
4.7 The respondent did request the complainant to recommend someone for a sales position and the complainant recommended Ms. F. The respondent rejects that the MD asked whether the person was single, had ties or was good looking and it also denies that it asked Ms. F during her interview whether she was single. In relation to the Budapest trip, one of the respondent's clients stated they might be travelling to Budapest on the week of St. Patrick's Day in 2004, however, the trip could not be confirmed. Therefore, the respondent was not in a position to authorise a trip by the complainant. The complainant then suggested she would take three days annual leave to travel to Budapest for personal reasons and said that as she would be in the area anyway, she would be able to assist the company if required to do so. It was on this basis that annual leave was granted to the complainant. The leave was requested and granted on 8 March 2004. Once confirmation was received from the client, the respondent attempted to contact the complainant as had been agreed however, the complainant was not contactable and did not return messages.
4.8 The respondent rejects the complainant's contention that it offered her a promotion or advised her that she was in line for promotion. The respondent rejects that it requested any of its employees to obtain information, either directly or indirectly, on the complainant's intention regarding the issue of having or not having children. Any such conversations, if and where they occurred, had nothing to do with and were not at the instigation of the respondent.
4.9 The respondent submits that the reason for the complainant's termination of employment was on account of the medical advice received by the Managing Director to the effect that his workload had to be reduced. The work of the sales team was then outsourced. Of the three members of the sales team, only Mr. W was retained in order to assist the operations side as it had formed part of his job up to that point. From May 2004 to April 2005, the respondent did not recruit any sales staff and the work of the sales team was outsourced. The respondent is appalled by the suggestion that it played a part in preventing the complainant seeking alternative work. It is clear from the reference provided by the respondent that the respondent found the complainant to be an excellent worker which was reflected in all conversations had about the complainant to any prospective employers with whom the respondent had contact. All commission paid to the complainant was paid in accordance with her contract.
4.10 The complainant had indicated to the respondent that she was concerned about losing her home on account of not being in employment. It was on this basis that the respondent decided to endeavour to facilitate the complainant in so far as it could and an offer of part time work was made. It was explained to the complainant that this was a temporary position only and it was made in order to ease the strain of her financial pressures. The respondent rejects the complainant's statement that she was asked to sign a clause promising not to sue the respondent for unfair dismissal. The evidence of the respondent in relation to the provision of database information is that the complainant was specifically asked not to give the information until she had spoken to the MD.
4.11 The respondent submits that the complainant has failed to establish that she suffered any discriminatory treatment by the respondent on account of her gender, her marital status or her family status.
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 In this case, the complainant alleges that the respondent directly discriminated against her on the gender, marital status and family status grounds in relation to her dismissal. I must therefore consider whether the respondent directly discriminated against the complainant on the gender, marital status and family status grounds in terms of section 6(2)(a), (b) and (c) of the Employment Equality Acts 1998 and 2004 in contravention of section 8 of the Acts. In making my Decision in this case, I have taken into account all of the evidence, both written and oral, submitted to me by the parties.
Discrimination on the various grounds
5.2 Section 6(1) of the Employment Equality Acts 1998 and 2004 provides that:
"..... 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"),
(b) that they are of different marital status (in this Act referred to as "the marital status ground"),
(c) that one has family status and the other does not (in this Act referred to as "the family status ground"),
Caselaw on establishing a prima facie case of direct discrimination
5.3 I will firstly consider the issue of whether the complainant has established a prima facie case of direct discrimination on the age ground. The Labour Court in the case of The Southern Health Board v. Dr. Teresa Mitchell (1) considered the extent of the evidential burden which a claimant must discharge before a prima facie case of discrimination on grounds of sex can be made out. It stated that the claimant must:
".... "establish facts" from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination. It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there was no infringement of the principle of equal treatment."
The Labour Court went on to hold that a prima facie case of discrimination is established if the complainant succeeds in discharging that evidential burden. If the complainant succeeds, the respondent must prove that s/he was not discriminated against on grounds of their sex. If the complainant does not discharge the evidential burden, the claim cannot succeed.
5.4 Subsequently, the Labour Court stated in relation to the burden of proof in a discriminatory dismissal case on the age ground:
"It is now established in the jurisprudence of this court that in all cases of alleged discrimination a procedural rule for the shifting of the probative burden similar to that contained in the European Communities (Burden of Proof in Gender Discrimination Cases) Regulations 2001 (S.I. No. 337 of 2001) should be applied. The test for determining when the burden of proof shifts is that formulated by this Court in Mitchell v. Southern Health Board  ELR201. This places the evidential burden on the complainant to establish the primary facts on which they rely and to satisfy the Court that those facts are of sufficient significance to raise an inference of discrimination. If these two limbs of the test are satisfied the onus shifts to the respondent to prove that the principle of equal treatment was not infringed." (2)
The allocation of the burden of proof in discrimination cases is now governed by section 85A(1) of the Act as amended. This provides:
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.
In Determination No: EED054 Tsourova v Icon Clinical Research  16.E.L.R. 250, the Labour Court took the view that the rule of evidence provided by s85A of the Act as amended is applicable in current proceedings including proceedings in relation to events which occurred prior to its enactment.
5.5 The complainant commenced employment with the respondent company on 14 July 2003. She submits that Ms. Mc A, Property Adviser on the sales team was annoyed when she learned of the complainant's plans to get married two months after she commenced employment with the company. Ms. Mc A, in evidence at the hearing accepted that an issue did arise at the time regarding the complainant seeking holidays in relation to her wedding plans. She considered that if the complainant had been honest and upfront with her, she could have planned better. She submitted that she had no problem with the complainant getting married and that once the issue had been dealt with, it had been closed from her perspective. The Managing Director submitted at the hearing that there was a feeling that the complainant was underhand.
5.6 The complainant submits that when she went to Budapest on annual leave in March 2004, she was harassed by the company. The respondent submits that the complainant was granted leave at short notice on the basis that if required, she would assist the company. It submitted that once confirmation was received from the client, the respondent attempted to contact the complainant as had been agreed between the parties but the complainant was not contactable and did not return messages. In this case, as the complainant had been granted annual leave, she should not have been contacted by the respondent notwithstanding that it may have allowed her to take annual leave at short notice with less than the standard four weeks notice.
5.7 The complainant also submitted that she never received the orientation course around Budapest that other employees received. She submitted that a colleague who started in March 2004 had received an orientation course by the time she was made redundant on 28 May 2004. The Managing Director submitted at the hearing that the complainant claimed at her interview that she knew Budapest well and that was one of the attractions in recruiting her. Notwithstanding any statement by the complainant in relation to knowing Budapest well, she should have been offered the orientation course similar to other employees and it was then a matter for her to refuse it on the basis that she did not need it in order to effectively carry out her duties. The complainant also submits that on three occasions, her plans for having children were questioned by three of her colleagues. All three persons accepted at the hearing that they had a conversation with the complainant in relation to this matter but that it was done in a friendly way in routine conversations. The respondent submitted that any conversations that occurred had nothing to do with the respondent and were not at the instigation of the respondent. In order to prevent any recurrence of inappropriate questions being asked and to remind staff that it is inappropriate to make assumptions and stereotype people which could in conjunction with other factors and in certain circumstances raise an inference of discrimination, it would be prudent for the respondent to draft a policy in relation to equal opportunities in the workplace and a policy on the prevention of harassment and bring them to the attention of all staff.
5.8 The complainant submitted that outstanding commission monies were paid to her in dribs and drabs. The respondent submitted that payments of outstanding commissions were paid to her on 15 July, 23 July and 6 August. The Managing Director submitted that the complainant was constantly on the phone and calling into the office, however, a question arises whether she would have done so had she been paid her entitlements on dismissal. The complainant also submitted that she believes that she did not get offers of two jobs for which she was interviewed because the Managing Director spoke to the companies in question and gave her a bad reference. The Managing Director accepted that he spoke to a representative of one of the companies but not the other and that he gave the complainant a good verbal reference as he had done in writing. I have read the written reference provided to the complainant and it is a very good reference. At the hearing, the Managing Director submitted that whilst the complainant was an effective worker, she was not a team player. I note that the evidence given contradicts the statement in the complainant's reference that she was a "a highly effective dynamic team player and valued team member,....."
5.9 The complainant submits that on 30 April 2004, she was informed by letter that she and another female sales colleague (Ms. F who commenced working for the respondent on 24 March 2004) were being made redundant due to the Managing Director's ill health and the advice of his doctor that he had no other option but to reduce his workload and levels of stress with immediate effect. The other member of the sales team who was male was retained but left of his own volition in July 2005. A letter from the Managing Director's Medical Practitioner confirmed that the Managing Director was a patient of his since 1992 and was admitted to hospital on 8 April 2004 with chest pains. He submitted on behalf of the complainant that tests subsequently indicated that the pain was not cardiac in nature and the Managing Director was discharged from hospital on 13 April 2004. The respondent submits that in these circumstances, a decision was made to outsource the work done by the sales team which resulted in the termination of the complainant's employment. The respondent submitted than the male member of the sales team was retained in order to assist with the operations side of the business which had formed part of his job up to that point. I note that the letter from the Medical Practitioner makes no reference to him advising the complainant that he needed to reduce his workload and levels of stress with immediate effect.
5.10 The respondent made available data in relation to new sales which were completed during the period 1 June 2004 to 31 October 2004. In particular, it submitted that during that period, there were 12 sales, 9 through an intermediary and 3 direct sales. It submitted in relation to the direct sales that these were sales generated through clients already on the respondent's database. The respondent provided a copy of the database records in relation to the clients in question showing the date of the first enquiry which in all cases preceded the termination of the complainant's employment. Additionally, the respondent provided a commission statement in respect of intermediary sales in the period June 2004 to December 2006.
5.11 The complainant in this case, in order to satisfy the burden of proof, must prove the primary facts on which she relies to raise a presumption of unlawful discrimination. The facts as established would have to raise a presumption that she was less favourably treated than a male, and/or that she was treated less favourably than someone of a different marital status and/or that she was less favourably treated than someone with a different family status in relation to dismissal. I consider than the complainant in this case has failed to satisfy the burden of proof and she has therefore failed to establish a prima facie case of discrimination in relation to her dismissal and the burden does not therefore shift to the respondent. Notwithstanding this finding, I consider that there were aspects of the complainant's treatment which whilst they could not be proven to be discriminatory on any of the grounds cited could be considered to be unfair, particularly in relation to the attempts to contact the complainant while she was on annual leave, the failure to provide her with an orientation course and the payment of commission to her after the termination of her employment. It is also the case that the complainant's service with the company did not satisfy the service period for the purposes of bringing a claim under the unfair dismissals legislation.
6.1 On the basis of the foregoing, I find that the find that the complainant has failed to establish a prima facie case of discrimination on the gender, marital status and family status grounds in terms of section 6(2)(a), (b) and (c) of the Employment Equality Acts, 1998 and 2004 contrary to section 8 of the Act in relation to her dismissal.
21 February 2007
(1) DEE011 15 February 2001
(2) Flexo Computer Stationery Limited v. Kevin Coulter EED0313 9 October 2003