The Equality Tribunal
Employment Equality Acts
(Represented by William John Kelly, B.L.
instructed by O’Hanrahan & Co, Solicitors)
- V -
Pagewell Concession (ILAC) Ltd.
(Represented by Bibby Consulting & Support Ltd.)
File references: EE/2011/577
Date of issue: 11 December 2013
Keywords - Employment Equality Acts – Discriminatory Treatment – Victimisaton – Harassment - Discriminatory Dismissal – Gender – Race - Family Status – Prima Facie case
1.1 This dispute concerns a claim by the complainant that that she was subjected to discriminatory treatment, victimisation, harassment and discriminatory dismissal by the respondent on the grounds of her Gender, Race and family status in terms of Sections 6(2), 14A and 74 of the Employment Equality Acts and contrary to Section 8 of those Acts.
1.2 The complainant referred claims of discrimination to the Director of the Equality Tribunal on 9 November 2012 under the Employment Equality Acts. On 20 September 2013, in accordance with his powers under section 75 of the Acts, the Director then delegated the cases to Conor Stokes - 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 25 October 2013. Additional information arising from the hearing was forwarded to the Tribunal on 5 November 2013. All written and oral evidence presented to the Tribunal has been taken into consideration when coming to this decision.
2. SCOPE OF THE INVESTIGATION
2.1 At the outset of the oral hearing, the victimisation and harassment elements of the complaint were withdrawn by the complainant. Therefore, this investigation will confine itself to the remaining elements of the complaint, namely discriminatory treatment in relation to the conditions of employment and discriminatory dismissal on the gender, race and family status grounds.
3. SUMMARY OF THE COMPLAINANT'S CASE
3.1 The complainant submitted that she was employed by the respondent from 31 August 2011 until she was dismissed on 12 September 2012.
3.2 The complainant submitted that she went on maternity leave in January 2012 and that while she was on leave, her husband who also worked for the respondent provided maternity leave cover. Her husband ceased employment with the respondent prior to her return from maternity leave.
3.3 The complainant submitted that she returned from maternity leave to different work in that she had previously been stocking shelves and when she returned she was confined to working on the tills. She also submitted that her hours were reduced upon her return to work.
3.4 The complainant submitted that she was inappropriately subjected to the respondent’s disciplinary process and was ultimately dismissed seven weeks after returning to work. The reason cited for her dismissal was that she had a small till imbalance, that she was rude to a customer and that she had too much money in her cash register.
3.4 The complainant submitted that she sought to appeal the dismissal and that her appeal letter was ignored until she consulted a solicitor
4. SUMMARY OF THE RESPONDENT’S CASE
4.1 The respondent submitted that the complainant began work on 30 August 2011 and that she went on maternity leave between 25 January and 24 July 2012.
4.2 The respondent denied that the complainant’s hours of work were reduced following her return from maternity leave and submitted that prior to going on maternity leave her weekly hours were 30.09, 37.35, 24.78 and 35.47 hours and that following her return from leave her hours were 28.09, 52.38, 32.66 and 34.01 hours.
4.3 The respondent submitted that all staff are expected to serve customers on the tills and also to do some shelving and that the complainant undertook both types of duties prior to going on maternity leave and when she returned from leave.
4.4 The respondent submitted that the complainant worked from 25 July 2012 until 6 September 2012 when she took holidays until 14 September 2012 and that she was dismissed on 12 September 2012.
4.5 The respondent submitted that the complainant was dismissed for a fair reason in that she had retained excess notes in her cash register contrary to policy, that she was rude to customers who then complained to her manager and that her till did not have the correct balance in it.
4.6 The respondent denied that the complainant was more vulnerable as a Polish woman with limited English and submitted that other Polish staff working in the store had English that was not as good as the complainants.
4.7 The respondent denied that it discriminated against her on the family status grounds
5. FINDINGS AND CONCLUSIONS OF THE EQUALITY OFFICER
5.1 The issue for decision by me is whether or not the respondent subjected the complainant to discriminatory treatment and discriminatory dismissal on grounds of gender, race and family, in terms of Sections 6 of the Employment Equality Acts, and contrary to Section 8 of those Acts.
5.2 Section 85A of the Employment Equality Acts sets out the burden of proof which applies to claims of discrimination. It requires the complainant to establish, in the first instance, facts from which discrimination may be inferred. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised.
5.3 The complainant stated that she did not return to the same job that she left and that this amounts to less favourable treatment on the gender ground. The complainant returned from maternity leave and returned to her previous job as a sales assistant. She stated that prior to going on leave she worked 60 percent of her time stacking shelves and 40 percent of her time on tills. When she returned following maternity leave, she worked 60 percent of her time on tills and 40 percent of her time on stacking shelves. This account was not contradicted by the respondent. Given that she performed both duties prior to taking maternity leave and performed both duties upon her return, I cannot conclude that she returned to a different job. Therefore, I do not consider that this amounts to less favourable treatment on the gender or other cited grounds. Additionally, having considered the timesheets for the complainant’s employment which do not show a marked reduction of hours, and considering the complainants comment that everybody was cut hours at that point in time, I do not consider that this demonstrates less favourable treatment on any of the cited grounds either.
5.4 On 25 August 2012, the complainant’s Manager, Ms W, began a disciplinary investigation into three events that occurred on that day. The complainant was called to account for firstly being rude to a customer, secondly for having excess notes in her cash register (more than the €150 allowed by policy, and finally for having a discrepancy in the cash float of almost €2. The respondent submitted that Ms W, the complainant’s direct supervisor and also a Polish national, had a personal vendetta against the complainant and that she would have been aware of the complainant’s length of service with the company. This assertion was supported by the complainant’s letter of appeal to her ‘unfair dismissal’ wherein she outlined the treatment that she had received from Ms W during her entire employment, stating that she was pursuing a “personal vendetta” against her and that her dismissal was unfair.
5.5 The respondent indicated that it dealt with disciplinary matters for staff who had service of 12 months in a less favourable manner to those staff who had more than 12 months service. In addition, the respondent indicated that during the dismissal process, it considered that the complainant had less than 12 months service as the disciplinary action had commenced prior to the end of 12 months service. The respondent accepted that, when dismissed, the complainant had in excess of 12 months service and stated that it only became aware of this when reviewing the case following the complainant’s dismissal. The respondent further indicated that, as her direct line manager, Ms W would have been aware of all of these issues when dismissing her.
5.6 When Ms W came to gave evidence (on behalf of the complainant) on this matter she was quite evasive in this regard and would neither confirm nor deny that she had a personal vendetta against the complainant. She tended to veer towards the matter of her own ultimate dismissal from the respondent.
5.7 When considering the oral evidence of witnesses (especially when contradictory), I am particularly mindful of the credibility or otherwise of the individuals in terms of their demeanour while testifying; their level of recollection of various incidents/facts; the existence or non-existence of bias, interest or other motive; the consistency of their evidence – within their own accounts and when the accounts are compared with one another; and the plausibility of their accounts. I have also taken into account the issues raised by cross-examination by the various representatives. Having regard to Ms W’s testimony, I am not satisfied that she can be considered to be a credible witness for the purposes of this complaint.
5.8 The respondent indicated that when it received the complainant’s appeal to her dismissal, that the manager dealing with this matter, Mr S, normally based in the UK was abroad for an extended period. Given that no corroborating evidence that Mr S was abroad was submitted to the Tribunal, I am not satisfied that this excuses the delay in processing the complainant’s appeal. However, having given consideration to the written and oral submissions of both parties, I am not satisfied that the complainant has established that the reason for the delay is connected with any of the grounds cited.
5.8 Ultimately, the respondent conceded that the complainant’s dismissal may have been unfair but that it did not amount to discrimination. Having considered all matters in relation to the dismissal, I am not satisfied that the complainant has established facts from which discriminatory dismissal may be inferred on any of the three grounds cited. Therefore this element of the complaint must fail.
6.1 Having considered all the written and oral evidence presented to me, I find that a prima facie case of discriminatory treatment or discriminatory dismissal on the basis of the gender ground has not been established and this element of the complaint fails.
6.2 Having considered all the written and oral evidence presented to me, I find that a prima facie case of discriminatory treatment or discriminatory dismissal on the basis of the race ground has not been established and this element of the complaint fails.
6.3 Having considered all the written and oral evidence presented to me, I find that a prima facie case of discriminatory treatment or discriminatory dismissal on the basis of the family status ground has not been established and this element of the complaint fails.
11 December 2013