The Equality Tribunal
EMPLOYMENT EQUALITY ACTS 1998 - 2008
DECISION NO. DEC-E2011-172
(Represented by Richard Grogan & Associates)
Blackrock Inns Limited t/a Rochestown Hotel
(Represented by Byrne Wallace)
File reference: EE/2009/033
Date of issue: 14 September 2011
HEADNOTES: Employment Equality Acts, 1998-2008, Sections 6 and 8 - Gender, Marital Status, Family Status and Race - Conditions of Employment & Discriminatory Dismissal.
1.1. This dispute concerns a claim by Ms Ingrida Matuleviciene that she was discriminated against by Blackrock Inns Limited t/a Rochestown Hotel on the grounds of gender, marital status, family status and race contrary to section 6 of the Employment Equality Acts in relation to conditions of employment and dismissal in a discriminatory manner contrary to section 8 of the Acts.
1.2. The complainant referred her claim to the Director of the Equality Tribunal on 23 January 2009 under the Employment Equality Acts. On 17 June 2011, in accordance with his powers under section 75 of the Acts, the Director delegated the case to me, 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 received from both parties. In accordance with Section 79(3A) of the Acts and as part of my investigation I proceeded to a hearing on 24 June 2011.
2. COMPLAINANT'S SUBMISSION
2.1. The complainant is Lithuanian and started working for the respondent on 6 June 2005 undertaking room cleaning.
2.2. She submits that she was not issued with a contract of employment and particularly she did not receive a contract of employment in a language that she could understand. She also submits that she did not receive any health and safety training or documentation. The complainant relied on Equality Tribunal Decision DEC-E2008-020, Goode Concrete Limited v 58 Named Complainants and stated this decision said there is an obligation on the employer to provide a contract of employment and health and safety documentation in a language likely to be understood by the complainant.
2.3. The complainant went on Maternity Leave on 13 July 2008 and was due to return to work on 15 January 2009. She submits that in early January 2009 she went into the hotel to ask whether she was due pay for Bank Holidays. She spoke to an accountant who told her that she was dismissed. On 12 January 2009 her P45 arrived and stated that she had been dismissed on 29 June 2008. The complainant was surprised by this as the date was before she went on maternity leave and the respondent, in later correspondence, confirmed that the complainant started her maternity leave on 13 July 2008.
2.4. The complainant submits that her dismissal was discriminatory and cited Equality Tribunal Decision DEC-E2008-020, Goode Concrete Limited v 58 Named Complainants and relied on the reference in that decision to Labour Court Determination EED048, Campbell Catering Limited and Aderonke Rasaq in which that stated "It is clear that many non-national workers encounter special difficulties in employment arising from a lack of knowledge concerning statutory and contractual employment rights together with differences of language and culture. In the case of disciplinary proceedings, employers have a positive duty to ensure that all workers fully understand what is alleged against them, the gravity of the alleged misconduct and their right to mount a full defence, including the right to representation. Special measures may be necessary in the case of non-national workers to ensure that this obligation is fulfilled and that the accused worker fully appreciates the gravity of the situation and is given appropriate facilitates and guidance in making a defence. In such cases, applying the same procedural standards to a non-national workers as would be applied to an Irish national could amount to the application of the same rules to different situations and could in itself amount to discrimination."
3. RESPONDENT'S SUBMISSION
3.1. The respondent submits that it employs 45 staff with a mix of nationalities: 23 Irish, 11 Polish, 4 Lithuanian, 2 Romanian, 2 Chinese, 1 Portuguese, 1 French and 1 Angolan. The complainant started work for them on 6 June 2005 as a Casual Accommodation Assistant.
3.2. The respondent submits that the complainant was issued a contract of employment in the same format as any other employee.
3.3. The respondent submits that health and safety documentation was not provided to any employee during the period that the complainant was employed. They contend that as the complainant was treated the same as all other employees there is no evidence of discrimination. They have since introduced health and safety documentation and training for all staff. The respondent cited Equality Tribunal Decision DEC-E2005-061, Gaki v Hillmount Properties Limited, in which the Equality Officer concluded that a breach of legislation does not itself of constitute evidence of discrimination.
3.4. The respondent submits that the complainant was never dismissed. She went on Maternity Leave on 14 July 2008 and was due to return on 14 January 2009. They submit that on or around 15 December 2008 the complainant came to the hotel and spoke to the Accounts Assistant, Ms A, and enquired about payment she was due for Bank Holidays. As Ms A had never previously met the complainant she took her name and phone number and told her she would have to speak to the Manager, Ms B.
3.5. The respondent submits that in January 2009 the complainant telephoned the hotel and spoke to Ms A. She asked for her P45 and said she wanted to collect it that afternoon. Ms A assumed the complainant had resigned, prepared the P45 and left it at reception.
3.6. The respondent submits that the complainant did not contact her manager, Ms B, directly at any time during December 2008 and January 2009. However, Ms B was not surprised when she heard of the complainant's resignation because during a conversation they had at the time the complainant was going on Maternity Leave the complainant said she was not sure if she would return to work. The respondent does not accept the complainant's version of events. However, if the complainant was confused about her employment they do not understand why she did not contact Ms B directly. She was her direct line manager and they had a good working relationship. Furthermore, she was the person who had the authority to make a decision to dismiss the complainant.
3.7. As the respondent did not consider that the complainant was dismissed they were surprised when they were contacted by the complainant's representative in a letter dated 23 January 2009 advising them that the complainant had initiated a claim of discriminatory dismissal with The Equality Tribunal. They replied on 17 February 2009 confirming that the complainant's position remained open for her and requesting her to consider taking up the position again. In a further letter of 26 February 2009 the respondent confirmed that Ms A was adamant she had not said anything to the complainant that could be interpreted as indicating she was dismissed. They also stated Ms A had no authority to make such a decision. The offer for the complainant to return to work was repeated and left open until 27 March 2009.
3.8. The respondent accepts the date of leaving on the P45 was incorrect. It should have stated the date in January 2009 when the P45 was requested and issued. They submit that 28 June 2008 was automatically generated by the payroll system as it was the Sunday of the last week in which the complainant was in work. This date had been inserted on the payroll system by Ms B at the start of the complainant's maternity leave in order that she was not paid whilst on maternity leave.
4. FINDINGS & CONCLUSION
4.1. At the start of the hearing the complainant withdrew her claim in relation to a contract of employment. Therefore, I have to decide if the complainant was discriminated against in relation to conditions of employment, regarding a lack of health and safety training and documentation on the grounds of race and if she suffered discriminatory dismissal on the grounds of gender, marital status, family status and race. 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 presented at the hearing.
4.2. Section 85A (1) of the Employment Equality Acts, 1998 - 2007 states: "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." This means that the complainant must establish primary facts upon which the claim of discrimination is grounded and then the burden of proof passes to the respondent. Section 6(1) of the Employment Equality Acts, 1998 and 2004 provides that discrimination shall be taken to occur where "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).....".
4.3. It is accepted that no health and safety training or documentation was provided for the complainant. The respondent contends that it was not provided to any other employer at that time and therefore the complainant was not treated in a discriminatory manner. It is not for me for to decide if the respondent complied with the health and safety legislation. Section 6 of the Acts makes it clear that I have to consider whether the complainant was treated less favourably than someone of a different race. No evidence was adduced to show she was treated differently than anyone else and I accept the respondent's contention that they treated all their staff the same, regardless of race. I therefore find that the complainant has failed to establish a prima facie case of discrimination in relation to her conditions employment.
4.4. The complainant contends she was dismissed whilst on maternity leave. No evidence was put forward regarding the dismissal in relation to the grounds of marital status, family status or race. I am, therefore, dealing with the claim of discriminatory dismissal on the grounds of gender. The case law of the European Court of Justice (ECJ) is quite clear. In Dekker v Stichting Vormingscrentrum voor Jong Volwassen, Case C-177/88, it held that unfavourable treatment as a result of or connected to pregnancy is direct discrimination on grounds of gender. It later held in Brown v Rentokil, Case C-394/96 that the entire period of pregnancy and maternity leave is a protected period during which both the EU Equal Treatment Directive 76/207 and EU Pregnancy Directive 92/85 prohibit dismissal on grounds of pregnancy and dismissal of a pregnant employee during that period can only occur in exceptional circumstances unrelated to pregnancy or maternity. The Labour Court in Determination EED016, A Company and A Worker found that 'no employee can be dismissed while they are pregnant unless there are exceptional circumstances unconnected with the pregnancy and those exceptional circumstances are notified to the employee in writing'. In this claim the complainant's employment with the respondent finished when her P45 was issued, which was during her maternity leave and she therefore falls within the protected period.
4.5. I must first decide if the complainant was dismissed during her maternity leave or if she resigned voluntarily. It is agreed that she started her maternity leave on 14 July 2008 and was due to return on 14 January 2009. At the hearing the complainant confirmed that in December 2008 she came into the hotel and met the Accounts Assistant (Ms A) with here teenage son present helping to interpret. She asked about her entitlement to payment for Bank Holidays whilst on maternity leave. She contends that at this meeting Ms A told her she was already dismissed with effect from 28 June 2008 and asked if she wanted her P45. Her son gave corroborative evidence at the hearing that Ms A said the complainant was not entitled to Bank Holiday pay as she was already dismissed. Ms A, who left the respondent's employment in July 2009, gave evidence at the hearing confirming that the complainant enquired about her entitlement to Bank Holiday pay and that she told the complainant she needed to talk to Ms B before she could make any payment as she had never met the complainant before. In looking at the payroll system Ms A indicated that the complainant had finished work on 28 June 2008 before going on maternity leave but she stated that she gave no indication to the complainant that she had been dismissed.
4.6. I note that the complainant was not issued with a P45 subsequent to the meeting in December 2009. The complainant rang Ms A in early January 2009 and asked for her P45. Neither party was sure of the date of the phone call but it was before the scheduled end of her maternity leave period. The complainant gave evidence that the reason she asked for her P45 was that if she was dismissed she wanted to get her P45. Ms A gave evidence that she saw no link between this request and the meeting they had in December 2008. She understood the request to amount to the complainant's resignation and issued the P45 accordingly. She saw no reason to talk to Ms B about the complainant's request for her P45.
4.7. Where there is any confusion about the reasons for an employee leaving their employment during the protected period the Labour Court has clearly put the onus on the employer to clarify the situation. In Dollymount Creche & Montessori School v Siobhan Finnerty, Det. No. EED034 they stated: "Regardless of these assumptions, there was an onus on the employer to clarify the situation and to seek confirmation of her resignation particularly as the employee was pregnant and on maternity leave at the time of the purported termination of employment." And in Partcourt Ltd v A Worker, Det. No. EED0211 they stated: "A prudent employer acting reasonably would, at least, have sought to ascertain the true position before treating the complainant's employment as having come to an end."
4.8. There is a clear contradiction in evidence of the meeting in December but on balance I accept the evidence of Ms A that she did not say that the complainant was dismissed on 28 June 2008. If she had there is no reason why the P45 was not issued at that time. Therefore, I conclude that, at that time, there was no confusion in the mind of the respondent as to the complainant's status. As far as they were concerned she was on Maternity Leave and due to return to work on 14 January 2009.
4.9. Both the complainant and Ms B confirmed at the hearing that they had a good working relationship and they had each other mobile phone numbers. I accept Ms B's evidence that if the complainant was confused about her employment from her meeting with Ms A in December 2008 then she could easily have clarified the situation by contacting Ms B. The complainant stated at the hearing that after Ms A told her she was dismissed she tried to ring Ms B a number of times but got no answer. Ms B stated that the complainant would have known when she worked and she got no calls, missed calls or messages from the complainant. I accept Ms B's evidence that she was not contacted by the complainant. As there was no confusion in the mind of the respondent there was no reason for them to contact the complainant.
4.10. In her written submission the complainant stated that the December meeting took place in January 2009 and her P45 was issued a few days later. At the hearing she confirmed that the meeting took place in December 2008 and she rang up and requested her P45 in early January, nearly four weeks after the initial meeting. The complainant did not provide a satisfactory explanation for this difference between her written and oral evidence. I therefore conclude that the complainant requested her P45 in January 2009 and I have to decide if it was reasonable for the respondent to take this request as a resignation or if they should have sought to clarify the situation.
4.11. When the complainant requested her P45 she did not say that she considered she had been dismissed and as I have already stated there was no confusion in the mind of the respondent following the meeting in December. Therefore this request was not related to any previous event as far as the respondent was concerned.
4.12. I also accept Ms B's evidence that there was no problem with the complainant's work and this was shown when the complainant's representative wrote to them on 23 January 2009. They replied on 17 February 2009 stating that the complainant had not been dismissed, that her position remained open and they asked the complainant to consider returning to work. Following a further letter from the complainant's representative on 23 February 2009 they replied on 26 February 2009 clarifying the situation from their point of view and repeating that they were willing to take the complainant back.
4.13. The Labour Court in Promowear Limited v Marilyn Ramos, Det. No. EED061 stated "The Court accepts that in the circumstances it was reasonable for the employer to conclude that the resignation was real and that his understanding of the situation was real." When Ms B heard that the complainant was leaving she remembered that complainant had expressed doubts as to whether she would be returning to work with the respondent at the end of her maternity leave.
4.14. On the balance of the evidence presented I accept that the respondent had no reason to think the complainant considered herself to be dismissed until they were so informed by her representative on 23 January 2009. This is reinforced by their reaction on being told she considered herself to have been dismissed in a discriminatory manner was to offer her job back. I conclude that the respondent acted reasonably in accepting the complainant's resignation and that the complainant was not dismissed by the respondent but left voluntarily. I further conclude that the respondent had no reason to make contact with the complainant to clarify the "true position". I find that the complainant was not subject to discriminatory dismissal on he grounds of gender.
I have investigated the above complainant and make the following decision in accordance with section 79 of the Acts that:
the complainant has failed to demonstrate a prima facie case of discrimination in relation to conditions of employment, and
the complainant was not dismissed in a discriminatory manner.
14 September 2011