The Equality Tribunal
EMPLOYMENT EQUALITY ACTS 1998 - 2008
EQUALITY OFFICER’S DECISION DEC-E2008-057
(Represented by the Equality Authority)
Arcourt Ltd t/a Sheldon Park Hotel & Leisure Club
File reference: EE/2006/140
Date of issue: 21 October 2008
1.1This dispute concerns a claim by Ms Emma Conlon that she was discriminated against in relation to her conditions of employment and suffered discriminatory dismissal by the Sheldon Park Hotel on the grounds of gender in contravention of section 77(b) of those Acts, and also that she was victimised and suffered victimisatory dismissal in contravention of 74 (2) of those Acts.
1.2 The complainant referred her claim to the Director of the Equality Tribunal on 4 May 2006 under the Employment Equality Acts 1998 and 2004. On 21 June 2007, in accordance with her powers under section 75 of the Acts, the Director delegated the case to Hugh Lonsdale, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts, on which date my investigation commenced. Submissions were sought and received from the parties. As required by Section 79(1) and as part of my investigation I proceeded to hearing on 16 June 2008and final information was received on 22 July 2008.
2. SUMMARY OF THE COMPLAINANT'S CASE
2.1 The complainant’s case is that she was discriminated against in her conditions of employment by being instructed to wear a skirt. She also submits that she had no problems at work until the Equality Authority wrote to the respondent after which her shifts were reduced and that this amounted to victimisation and ended in her being dismissed in a victimisatory manner.
2.2 The Complaint submits that she started work for the respondent as a part-time waitress on 23 November 2005 and that she regularly worked two shifts per week, Wednesdays and Saturdays from 5pm to 11pm, with some extra shifts over the Christmas/new year period.
2.3 Before starting her employment with the respondent she was advised that the correct dress was a white shirt and black skirt but it was agreed that, as she did not have a black skirt, she could wear black trousers for the moment. After three shifts her manager (Mr A) told her that she must wear a black skirt or she would no longer have a job. The complainant submits that she complied with this instruction for the remainder of her employment with the respondent but did not feel comfortable wearing a skirt in a professional working environment, also she felt physically uncomfortable.
2.4 The complainant submits that in December 2005 she went to the Equality Authority to seek advice as to whether the respondent’s practice of making her wear a skirt was allowed. The Equality Authority wrote a letter dated 16 January 2006 but which was not sent until shortly after 6 February 2006 to the respondent putting the complainant’s case; advising that they considered the practice discriminatory and stating that the complainant would be satisfied if the practice was changed to allow her to wear trousers. The respondent did not reply to this letter.
2.3 On the 1 March 2006 the complainant submits that she arrived for her shift and was told by Mr A that she was not needed for that shift as the hotel was training new staff.
2.4 The complainant submits that she worked on 4 March 2006 and when she asked was re-assured by a manager (Mr B) that she had nothing to worry about regarding her employment. She worked again on 8 March 2006 but was told by Mr A that in future she would only be working one shift per week and that she was to phone in to find out which shift. The complainant worked again on 11 March 2006.
2.4 The complainant submits that after this she tried to speak to the General Manager (Mr C) on a number of occasions but never got through to him and he did not return her calls. She further submits that she never worked for the respondent again and on 9 April 2006 received her P45 in the post with no covering letter and never received a reason for her dismissal. The Equality Authority wrote to the respondent on 24 April 2006 seeking an explanation but received no reply. The complainant submits that she received no complaints about her work whilst working for the respondent.
3. SUMMARY OF THE RESPONDENT’S CASE
3.1 The respondent denies the allegations of discrimination, victimisation and victimisatory dismissal and submits that at the time of the complainant’s employment they had an employee handbook which was given to all staff with their conditions of employment and sets out all the respondent’s policies and their employee’s entitlements. In the ‘Standards’ section of the Handbook part B) ‘Standards of Dress’ states:
“As you are liable to come into contact with customers and members of the public, it is important that you present a professional image with regard to appearance and standards of dress. Where uniforms are provided, these must be worn at all times whilst at work and laundered on a regular basis. Where uniforms are not provided, you should wear clothes appropriate to your job responsibilities, and they should be kept clean and tidy at all times. The Head of Department will issue you with guidelines regarding accepted standards of appearance.”
3.2 The respondent submits that their policy during the complainant’s employment was that female waiting staff could choose to wear a skirt or trousers.
3.3 The respondent submits that sometime in the month after the complainant left a director (Ms D) asked the General Manager (Mr C) why the complainant was no longer around and was told that ‘she could not do the hours that she was needed for and that she was unreliable and had let him down and that she left during one of her shifts.’ The respondent submits that the complainant did not clock out on five occasions, was late twice and did not show up for two shifts. The respondent submitted copies of rosters and clock cards to show these incidents.
4. CONCLUSIONS OF THE EQUALITY OFFICER
4.1 The complainant alleges discriminatory treatment on gender grounds in terms of Section 6(2)(a) of the Employment Equality Acts 1998 – 2008 and contrary to Section 8 of the Acts in her conditions of employment by being instructed to wear a skirt. She also alleges that she was victimised and suffered victimisatory dismissal following the involvement of the Equality Authority. Section 79(1A) of the Acts requires me to make a decision on each claim and I have therefore dealt with the discriminatory treatment and victimisation claims separately. In making my decisions I have taken into account all of the evidence, both written and oral, made to me by the parties.
4.2 The respondent’s staff handbook gives a general standard of dress that is expected of staff but is not explicit in relation to dress for waiting staff. At the hearing the respondent gave evidence that female waiting staff could choose to wear a skirt or trousers. The complainant, as stated in the Equality Authority’s letter sent to the respondent in February 2006, would have been satisfied if she had been given this choice. Therefore, it is clear to me that if the respondent’s policy had been operated this claim would not have been taken by the complainant. However, the complainant gave clear and credible evidence that she did not receive a copy of the staff handbook, that her manager instructed her to wear a skirt for work and that she reluctantly complied with this instruction because she considered she would be dismissed if she did not.
4.3 The respondent was unable to counter the complainant’s evidence and relied on their stated policy to show that the instruction to wear a skirt could not have been given. On the balance of evidence given I find that the instruction was given to the complainant that she must wear a skirt.
4.4 The complainant has shown that she was treated differently from the respondent’s dress policy by being made to wear a skirt and this occurred because of her gender. Therefore she has established a prima facie case of discrimination and in accordance with section 85A of the Acts the burden of proof shifts and “it is for the respondent to prove the contrary.”
4.5 I consider that the respondent’s stated policy would, if implemented properly, have satisfied the approach set out in Labour Court Determination No. EED0314(1): “Applying that principle whether or not a dress code is discriminatory, it is the Court’s view that the appropriate approach is to consider if it applies a common standard of neatness, conventionality and hygiene to both men and women and does not unreasonably bear more heavily on one gender than it does on the other.” However this policy was not implemented for the complainant and the respondent gave no operational reason why the complainant was so instructed. I therefore find that discriminatory treatment took place.
4.6 Furthermore, the respondent did not take the opportunity to implement their stated policy when the Equality Authority wrote to them. The respondent stated that this letter was passed to a solicitor who took no action but it should have been straightforward for the respondent to rectify the situation without recourse to a solicitor.
VICTIMISATION & VICTIMISATORY DISMISSAL
4.7 In relation to the claim for victimisation and victimisatory dismissal Section 74 (2) of the Acts states: “… victimisation occurs where dismissal or other adverse treatment occurs as a reaction to-
(a) a complaint of discrimination made by the employee to the employer,” and I am satisfied that the letter sent by the Equality Authority in February 2006 amounts to a complaint of discrimination. I must therefore look to see if the complainant suffered dismissal and/or other adverse treatment by the respondent as a reaction to this complaint.
4.8 On 1 March 2006 the complainant was stopped from working a shift and was told this was because of staff training. She then worked the next three shifts as usual but did not work again after 11 March 2006. The complainant made a number of attempts to contact different members of management seeking an explanation for the lack of shifts but no one would speak to her.
4.9 The complainant was dismissed when she received her P45 in the post on 9 April 2006 and received no explanation for her dismissal, verbal or written. The managers involved at the time of the complainant’s dismissal no longer work for the respondent and were not available to give evidence at the hearing to provide an explanation of why the complainant was dismissed. The respondent inferred through Ms D’s recollection of her conversation with Mr C and copies of rosters and clock cards that it was for disciplinary reasons. The complainant gave credible explanations for the inferred disciplinary transgressions; the two lates arose from confusion over start times which were sorted out with her manager, the two shifts she missed were because of sickness and her manager was aware of one of these in advance and she submitted a sick note for the other. She admitted that she forgot to clock out on five occasions but this was never mentioned to her as a disciplinary matter.
4.10 The respondent confirmed that there was nothing on the complainant’s personnel file to indicate that any disciplinary action was taken or being considered and the complainant gave evidence that she was never approached by management regarding disciplinary matters.
4.11 In this case I find that there were no disciplinary issues that would have warranted the complainant’s dismissal. The respondent did not provide any other explanation for the complainant’s treatment and dismissal. Therefore, given the short time between the letter from the Equality authority and the first shift being taken away and subsequent dismissal, and in the absence of any other credible explanation, I find that this amounts to victimisation and victimisatory dismissal in terms of Section 74(2) of the Acts.
4.12 As I stated earlier the respondent had the opportunity to remedy the situation when they received the letter from the Equality Authority. However, instead of doing this they dismissed the complainant because she made a complaint of discrimination. This is victimisation under the Acts and as stated in Equality Tribunal decision DEC-E2002-017(2)“victimisation is a matter that must be taken extremely seriously. To allow victimisation of complainants for making complaints under the act would be to subvert the legislation. The purpose of section 74 is to protect those who consider they have been victims of discrimination. If this protection is not supported in the Equality Officer decisions, the legislation will be ineffective and the rights of the individual involved will be compromised.” The seriousness of the victimisation and victimisatory dismissal that took place in this case is reflected in the redress that has been awarded.
I have investigated the above complaints and make the following decisions in accordance with section 79 of the Acts:
i) That the respondent did discriminate against the complainant on the grounds of gender in terms of section 6(2)(a) in relation to conditions of employment contrary to section 8 of the Employment Equality Acts, 1998 - 2008. In accordance with section 82 of those Acts I award the complainant €1,600 in compensation for the discriminatory treatment suffered.
ii) That the respondent did victimise the complainant in terms of section 74 (2) of the Employment Equality Acts 1998 – 2008. In measuring the quantum of compensation I have had regard to all of the circumstances of the case including the distress which she suffered in consequence of the victimization and victimisatory dismissal together with the requirement to make an award which is effective, proportionate to the wrong suffered and dissuasive.In accordance with section 82 of those I award the complainant €6,500 in compensation for the adverse treatment suffered.
These figures represent compensation for infringement of her rights under equality legislation in relation to discrimination and victimisation and do not include any element relating to remuneration, and are therefore not taxable.
21 October 2008
(1) Labour Court Determination No EDA079, Group 4 Securicor and Mark Savage
(2) Equality Tribunal Decision, DEC-E2002-017, A Complainant v A Department Store