(REPRESENTED BY FARRELL SOLICITORS)
A HOTEL GROUP
(REPRESENTED BY GERGANA TOROMANOVA, SOLICITOR)
FILE NO: EE/2008/215
DATE OF ISSUE: 18th APRIL, 2011
This dispute involves a claim by a worker, that she was discriminated against by a Hotel Group, on grounds of her gender and marital status, in terms of section 6 (2) and contrary to section 8 of the Employment Equality Acts, 1998 to 2008 when she was dismissed from her job.
2.1 The complainant referred a complaint against the above named respondent under the Employment Equality Acts 1998 to 2008 to the Equality Tribunal on 9 April, 2008.
2.2 In accordance with his powers under section 75 of the Employment Equality Acts, 1998-2008 the Director delegated the case on 8th of July, 2010 to me, Orla Jones, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of those Acts. This is the date I commenced my investigation. Written submissions were received from both parties. As required by section 79(1) of the Acts and as part of my investigation, I proceeded to a hearing on 25th of March, 2011.
3. Summary of complainant's case
3.1 The complainant has been employed by the respondent since 1996 (12 years). The complainant submits that she was dismissed in circumstances amounting to discrimination on grounds of gender and marital status, when she was refused a return to her post after a period of unpaid leave.
3.2 The complainant submits that in August 2007 she requested a period of unpaid leave from her job. The complainant submits that she had been having a relationship with a male work colleague, and that the spouse of her colleague had become aware of the relationship. It is submitted that the complainant was fearful of an incident in the workplace and so requested a period of 2 months unpaid leave. It is further submitted that the complainant was granted this leave by the respondent and that she was due to return to work on 4th November, 2007.
3.3 The complainant submits that, 2 weeks prior to her return date, she contacted the respondent regarding her return to work and was advised, to contact her manager Ms. G to arrange a meeting. The complainant submits that, she was advised, at this meeting that, she was not permitted to return to work due to, issues with her performance. It is submitted that, this is the first time performance issues were raised with the complainant. It is submitted that the complainant was also told at this meeting that her position was no longer required and it was suggested that she may find it more convenient to work closer to her home. It is submitted that the complainant was offered 3 months pay while she found alternative employment before the meeting concluded.
3.4 It is submitted by the complainant that, a few days later, she rejected this offer during a phone call she made to Ms. G. It is submitted that the complainant was then advised that she could return to work as Accommodation Manager, in a particular branch of the company, on condition that, she terminate the employment of two supervisors working there. The complainant claims this post was a demotion from her previous post. It is also submitted that the complainant was advised by Ms G at this point that, two other managers in this branch had lost respect for her as a result of her relationship. The complainant submits that, she did not accept this offer and requested that she be returned to her previous post of Group Accommodation Manager.
3.5 The complainant submits that on 10th December 2007 she received a text message from the respondent advising her that the hotel had changed ownership and that shortly afterwards she received her P45 and outstanding pay.
3.6 The complainant submits that she was discriminated against on grounds of her marital status as she is aware of single colleagues who have had relationships with colleagues at work and whose employment has not been terminated.
3.7 It is further submitted that the complainant was discriminated against on grounds of her gender as, the male colleague with whom she had conducted the relationship was permitted to take time off and had his position held open for him during his absence.
4. Summary of respondent's case
4.1 The respondent denies that it discriminated against the complainant, at all. The respondent submits that the complainant has been employed by the respondent either directly or indirectly since 1996 (12 years). The respondent submits that her position was Group Accommodation Manager.
4.2 The respondent submits that, in August 2007 the complainant requested a period of unpaid leave as she was experiencing marital difficulties. The respondent submits that the complainant was granted this leave.
4.3 The respondent submits that the complainant, prior to her agreed return date of 5th November, 2007, contacted the respondent regarding her return to work and a meeting was organised for 26th October, 2007. The respondent submits that during this meeting the complainant indicated that she was looking at other employment options. It is submitted by the respondent that 3 options were discussed at this meeting as follows:
- An extension of the complainant's leave of absence
- A payment of 3 months salary to allow the complainant to consider her options
- The complainant to return to work on 5th November as planned
4.4 The respondent submits that the complainant did not return to work on 5th of November and did not contact the respondent in this regard.
4.5 The respondent submits that, in December 2007, they contacted the complainant by phone advising her that the hotel was changing ownership and seeking to resolve the situation. It is submitted that the complainant indicated that she was driving at the time and could not talk. It is submitted by the respondent that the complainant did not make any further contact regarding the matter.
4.6 The respondent submits that in December 2007 it became aware that the complainant had taken a position with another hotel. It is further submitted that the complainant contacted the respondent's financial director in late December requesting payslips. The respondent submits that following this a decision was taken that the complainants conduct was a unilateral termination of her employment relationship with them and in accordance with standard year end procedures, issued the complainants P45.
4.7 The respondent submits that in January 2008 the complainant's representative contacted them regarding allegations of discriminatory dismissal.
4.8 The respondent denies that the complainant's employment was unfairly terminated, on grounds of her marital status and submits that the complainant was responsible for her own cessation of employment as she chose not to return to work on the appointed date and instead pursued alternative employment and failed to notify the respondent of both.
4.9 The respondent denies that the complainant was discriminated against on grounds of her gender. It is submitted that, the married male colleague, with whom she complainant had conducted the relationship was not in a comparable situation as he took sick leave around September 2007 for about 6 weeks during which time his position was kept open. The respondent submits that at the end of his period of sick leave the comparator chose not to return to the company.
5. Conclusions of the Equality Officer
5.1 The issue for decision by me is now, whether or not the respondent discriminated against the complainant, on grounds of her gender and/or marital status in terms of section 6 and contrary to Section 8 of the Employment Equality Acts, 1998 to 2008 in relation to her dismissal. In reaching my Decision I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence of both parties at the Hearing.
5.2 Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination in relation to her. If she succeeds in doing so, then, and only then, is it for the respondent to prove the contrary.
The Labour Court elaborated on the interpretation of section 85A in Melbury v. Valpeters EDA/0917 where it stated that section 85A: "places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule".
Turning to the complainant's complaint of discriminatory dismissal, the complainant has submitted that she was not allowed to return to her job after a period of unpaid leave and that this amounts to a dismissal.
5.3.1 On the day of the hearing the complainant outlined how she had applied for and been granted an unpaid leave of absence from her job as she had been having a relationship with a male work colleague, and stated that she was fearful of an incident in the workplace as his spouse had become aware of the relationship. The evidence of both the complainant and respondent at the hearing was that a 2 month leave of absence had been agreed to facilitate the complainant.
5.3.2 The complainant advised the hearing that she had attended a return to work meeting with her Manager Ms. G on 26th of October, 2007, where she had an informal chat with Ms. G regarding her return to work. A summary of the complainant's account of this meeting is as follows:
The complainant was advised that
- her role as Group Accommodation Manager was no longer required.
- there would be a role for her, in a particular branch of the company, but she was advised that, 2 other managers who worked at this branch had lost respect for the complainant as a result of her relationship with her colleague Mr. W. The complainant had indicated in her submission, that this role was a demotion, however, upon questioning she advised the hearing that the post had the same pay and conditions as her Group role but without the responsibility for other branches.
- she could return to her previous role, on condition that, she dismiss 2 people who had been working in the role in her absence.
- she should come up with a package which suited her so as that she would not feel as if she were being treated like other managers who had in the past been pushed out.
In addition to the above, the complainant stated that she was offered 3 months paid leave while she considered her options.
5.3.3 At the hearing, witness for the respondent, Ms. G, agreed that this meeting did take place and that options were discussed, but states that, these options were discussed due to the complainant's expressing a desire to work closer to home. Ms G's account of the same meeting is as follows:
Ms. G advised the complainant that
- there would be a role for her in a particular branch of the company but, in order to facilitate the complainant, she would no longer be required to have responsibility for or to travel between various different locations. Ms. G agreed that this role had the same pay and conditions as the complainant's Group role without the responsibility for other branches. Upon direct questioning, Ms. G admitted that, she had mentioned that, 2 other managers who worked at this branch, had lost respect for the complainant as a result of her relationship with Mr. W.
- Ms. G stated that, a return to the complainant's previous role was not discussed as the discussion focused on options which would allow the complainant to work closer to home. Ms. G stated that, the question of terminating the employment of two supervisors did not arise and that it would not be usual for an individual to be asked to terminate the employment of two others.
Ms. G agreed that the complainant was also offered 3 months paid leave while she considered her options
5.3.4 The complainant advised the hearing that, there was no conclusion to the return to work meeting but that, she phoned Ms. G a few days later to say that she would not be accepting the offer of the post of Accommodation Manager. The complainant stated that Ms. G offered her a return to her original role but that, it meant firing two other supervisors. The complainant stated that she could not accept this condition and so did not return to work. Ms. G advised the hearing that she did not recall receiving any follow-up phone call from the complainant and that, the complainant had not shown up for work on her agreed return date nor had she advised the respondent that she would not be returning.
5.4 The complainant is arguing that, her failure to return to work for the respondent constitutes constructive discriminatory dismissal, since she states that, she was offered a post in a branch where she was made aware two other managers had lost respect for her and then she was offered a return to her original post on condition that she fire two other supervisors.
S. 2(1) of the Acts specifies that
"dismissal" includes the termination of a contract of employment by the employee (whether prior notice of termination was or was not given to the employer) in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled to terminate the contract without giving such notice, or it was or would have been reasonable for the employee to do so, and "dismissed" shall be constructed accordingly.
5.5 In An Employer v A Worker (Mr. O No.2) the Labour Court comprehensively addressed the issue of constructive dismissal under employment equality legislation. It noted that, the above definition was practically the same as the definition of "dismissal" contained in the unfair dismissals legislation and held that the tests for constructive dismissal developed under that legislation - the "contract" test and the "reasonableness" test - were applicable tests under the Employment Equality Acts. I should add that, where constructive dismissal is found under employment equality legislation, it is also necessary to establish whether such dismissal constitutes discrimination against the complainant, on any of the grounds specified in Section 6 of the Employment Equality Acts, 1998 to 2008.
5.6 In the instant case it would appear that, the reasonableness test is the relevant one. This test asks, whether the employer conducts its affairs in relation to the employee so unreasonably that the employee cannot fairly be expected to put up with it any longer. What can be regarded as reasonable or unreasonable depends on the circumstances of each case. However, it is an important element of the reasonableness test that the employer has an opportunity to address an employee's grievance or complaint.
5.7 The "reasonableness" test requires the complainant, to satisfy the Tribunal that, the behaviour of the respondent was so unreasonable, that she could not fairly be expected to put up with it any longer and she was therefore entitled to resign from its employment. Thus, an employer's conduct may not amount to a breach of contract but could, none the less, be regarded as, so unreasonable as to justify the employee in leaving. Further, the employer may commit a breach of contract which may not be of such a nature as to constitute repudiation, but is so unreasonable as to justify the employee in resigning there and then. The employer in this case offered the complainant a number of options regarding her return to work. The offer of 3 months paid leave, while she considered her options seems to be a very generous and reasonable offer on the part of the respondent and one which both parties agree was made.
5.8 The corpus of case law developed on this point requires, the complainant, before taking the unilateral step of terminating their employment, to give the respondent the opportunity to address the grievance or complaint. Whilst the complainant had met with Ms. G to discuss her return to work she did not present herself for work on her agreed return date, nor did she formally advise the respondent that she would not be returning to work. The complainant states that, she phoned Ms. G a few days after their meeting and rejected the options discussed at the meeting but stated that, she wished to return to her role as Group Accommodation Manager. The complainant advised the hearing that, she was told by Ms. G that this would only be possible if she terminated the employment of two supervisors. Although Ms G indicated that she had no recollection of this phone call, Ms. G's recollection of some of the issues raised was not very clear and she advised that, she had forgotten some details as it was a long time ago. I am thus, inclined to accept the complainant's version of events regarding the follow up phone call. The complainant advised the hearing that she was not prepared to fire the two supervisors and so, concluded that, the job was gone and did not make any further contact with the respondent nor did she show up for work. The complainant stated that she then sought alternative employment which she commenced in December, 2007.
5.9 In the instant case, the respondent offered the complainant a number of options regarding her return to work. The offer of 3 months paid leave while she considered her options seems to be a very generous and reasonable offer on the part of the respondent and one which both parties agree was made. Although the complainant was dissatisfied with the circumstances under which the offer of Accommodation Manager and the offer of her return to Group Accommodation Manager, were made I cannot find that the complainant acted reasonably by not showing up for work on her agreed return date or by not formally advising the respondent that she was not returning to work.
5.10 I am thus satisfied that the respondent in this case acted reasonably by offering the complainant a number of options regarding her return to work. I thus find that the complainant was not in fact dismissed by the respondent but that she terminated her own employment by not showing up for work and not formally advising the respondent that she was not returning.
6.1 Having investigated the above complaint, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts, 1998 to 2008. I find that:
i the respondent did not discriminate against the complainant on grounds of her gender or marital status in terms of section 6 and contrary to Section 8 of the Employment Equality Acts, 1998 to 2008 in relation to her dismissal.
18th April, 2011