THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2011
Decision DEC – E2014 – 055
Ms Sylwia Wach (represented by SIPTU)
Travelodge Management Ltd t/a Travelodge Waterford
File Reference: EE/2012/142
Date of Issue: 11th August 2014
Keywords: correct respondent – discrimination – conditions of employment – S. 8 – gender – maternity leave – race – harassment – S. 14 – victimisation – S. 74(2)
1.1. The case concerns a claim by Ms Sylwia Wach that Travelodge Management Ltd t/a Travelodge Waterford discriminated against her on the grounds of gender, family status and race contrary to Sections 6(2)(a), (c) and (h) of the Employment Equality Acts 1998 to 2011, in terms of her conditions of employment. She further complains of victimisation contrary to S. 74(2) of the Acts.
1.2. The complainant referred a complaint under the Employment Equality Acts 1998 to 2011 to the Director of the Equality Tribunal on 1 March 2012. A submission was received from the complainant on 10 July 2012. No submission was received from the respondent. On 11 June 2014, in accordance with his powers under S. 75 of the Acts, the Director delegated the case to me, Stephen Bonnlander, 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 this date my investigation commenced. As required by Section 79(1) of the Acts and as part of my investigation, I proceeded to hold a joint hearing of the case on 11 July 2014. The complainant and her representative were in attendance, however the respondent was not. I am satisfied that the hearing notification was sent and delivered by registered post, to a manager of the respondent who was identified by the respondent’s representative when they came off the record on 11 June 2012. Accordingly, I am satisfied that notice of the hearing was properly served on the respondent.
2. Summary of the Complainant’s Written Submission
2.1. The complainant submits that she is a Polish national who commenced employment with the respondent as an accommodation assistant on 4 August 2007. In September 2008, she secured a position as receptionist. Her shifts prior to her maternity leave were Monday and Tuesday from 11pm to 7am, as well as three day shifts with varying hours, either 3pm to 11pm, or 7am to 3pm, averaging 42.9 hours per week.
2.2. From 23 March 2011 to 21 September 2011, the complainant went on maternity leave.
2.3. On her return from maternity leave, the complainant found her hours reduced, and also found that the respondent brought in a staff member from Cork to do shifts when the complainant would have been available. Her manager expressed annoyance when he learned that she had raised this matter with the HR manager. He further stated that the complainant’s contract was only for 24 hours, and that therefore, that was all the complainant was entitled to. The complainant replied that those 24 hours are “minimum hours”, and that, on agreement with the previous manager, had been working full time for the last three years.
2.4. According to the complainant, the manager also said that her English was not good enough to work day shifts. It is the complainant’s contention that she had been working days for three years with no complaint. The manager is also alleged to have said: “You have been off for the last six months with your baby speaking Polish at home”, and that the complainant would need to spend more time with her baby. The complainant replied that she could speak Polish and English and that her partner was looking after the baby.
2.5. On 27 October 2011, the complainant sent a written complaint about all these matters to her manager. As a result, a meeting was held on 17 November 2011, which was attended by the complainant, one of her colleagues and a staff member from HR.
2.6. Following this complaint, which specifically included a mention that the complainant felt discriminated against, her manager threatened her with looking through cctv footage for any possible wrongdoing by the complainant, and that he would be using it against her. A couple of days after the complainant’s internal appeal against the outcome of her grievance had been rejected in January 2012, the complainant was called into a disciplinary meeting with her manager, where he raised an allegation that the complainant had been selling alcohol to non-residents. This was not pursued further since the manager was unable to adduce any evidence that the persons the complainant sold the alcohol to were indeed not guests of the hotel.
3. Summary of the Respondent’s Written Submission
3.1. As noted above, the respondent did not make a written submission to the Tribunal.
4. Conclusions of the Equality Officer
Preliminary issue – correct respondent
4.1. At the beginning of the hearing, the complainant’s representative raised a preliminary point that the respondent had, after the lodging of the complaint, changed its name and also that it turned out to be a subsidiary of a larger company. However, she also submitted documents which show that the respondent is named as “Travelodge” on the complainant’s contract of employment and her payslips and her P60 form, and that it engaged with the complainant under this name with regard to a complaint before the Rights Commissioners, and concluded a settlement with her under that name.
4.2. From all the documentation submitted, I am satisfied that the respondent was correctly identified by the complainant at the time the within complaint arose, and is her employer within the meaning of the Acts. Subsequent name changes or whether the respondent was or became a subsidiary of a larger entity have no bearing on my investigation of the matter. I am therefore satisfied that I have jurisdiction to investigate the matter.
4.3. The issues for decision in this case are whether the complainant was discriminated against within the meaning of the Acts and whether she was victimised when she complained about her treatment to her employer.
4.4. In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to S. 85A of the Acts. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of “sufficient significance” before a prima facie case is established and the burden of proof shifts to the respondent.
4.5. In coming to my decision, I have considered all oral and written evidence presented to me by the parties.
4.6. At the hearing of the complaint, the complainant gave extensive evidence herself. She worked, and continues to work for the respondent in the role of a hotel receptionist, as part of a team that is a mix of Irish and Eastern European nationals. The complainant herself is Polish. Since it is part of her complaint that her manager alleged she was insufficiently proficient in English to get the more desirable day shifts, I wish to note that I am satisfied from the way in which the complainant gave her oral evidence, as well as from documents submitted in evidence which she herself had written, that the complainant is fluent in written and spoken English.
4.7. The complainant also clarified in her evidence that her problems arose when she came back from her maternity leave to a different manager. Her new manager seemed determined to make life difficult for her. The complainant gave credible evidence that on return from maternity leave, she did not get back her old hours, and that the staff member who had been taken on to cover for her during her maternity leave was kept on. The complainant expressed the view during her evidence that this left the reception overstaffed.
4.8. The complainant stated in evidence that when she complained about her hours reduction to HR, her manager did not take it well. He cited her contract to her, which only entitles her to a minimum of 24 hours per week, and ignored her argument that in practice, and with the agreement of the previous manager, she had worked full time for the past three years. He also said to her that she would not get day shifts because her English was not good enough. The complainant stated in evidence that in the previous three years, no customer had ever raised a complaint about her proficiency in English, and as noted in paragraph 4.6 above, I am satisfied that the complainant is fluent in English.
4.9. I experienced the complainant as a credible witness, and I am satisfied that she returned from maternity leave to less favourable working conditions than she had enjoyed before. I attach particular importance to the fact that the staff member who covered for her during her maternity leave was left in place, which means that this was not simply a case of slow business in which the complainant might only have been entitled to the minimum hours set out in her contract. In the case on hand, I am satisfied that the complainant’s situation mirrors that of the complainant in the Tribunal’s decision DEC-E2006-007 Gardiner v. Mercer Human Resource Consulting, who likewise found her own role reduced on return from maternity leave while her replacement was left in place. Accordingly, I find that the complainant is entitled to succeed in her complaint of discrimination on the ground of gender, with regard to her conditions of employment.
4.10. With regard to the complainant’s complaint of discrimination in her conditions of employment on the ground of race, I note that the Tribunal has repeatedly found that assigning undesirable shifts to workers with protected characteristics, and more favourable shifts to other workers, can be comprehended as less favourable treatment within the meaning of the Acts. See, for example, DEC-E2009-116, Cers and Eimas v. Securazone Manhour Ltd (in liquidation). Since in the instant case, I do not accept the complainant’s manager’s statement with regard to the complainant’s proficiency in English, and therefore do not accept his reason for not assigning her day shifts, I find that the complainant is also entitled to succeed on her complaint of discrimination in her terms and conditions on the ground of race.
4.11. With regard to the complainant’s complaint of victimisation, I note that on 27 October 2011, the complainant raised a formal written complaint against her manager, in which she raised the issue of possible discrimination. In it, she refers to the situation surrounding her return from maternity leave, as well as the fact that an Irish colleague is rostered for the morning shifts at reception. She also encloses the respondent’s equality policy. I am satisfied that these facts make her complaint a protected action within the meaning of S. 74(2)(a) of the Acts. The complainant stated in evidence that her manager was incensed at the complaint and said to her that he would look through the hotel’s CCTV footage for disciplinary infractions on the part of the complainant. Shortly after, the complainant was called to a disciplinary meeting to answer an allegation that she sold alcohol to a man who was not a guest in the hotel. However, the complainant was able to show that the customer in question was indeed a hotel guest who bought alcohol and then took it off the premises. The disciplinary proceedings were then dropped. However, I am satisfied that the actions of the complainant’s manager do constitute adverse treatment as set out in S. 74(2) of the Acts, and that the complainant is entitled to succeed in her complaint of victimisation as well.
5.1. Based on all of the foregoing, I find, pursuant to S. 79(6) of the Acts, that the Travelodge Management Ltd t/a Travelodge Waterford discriminated against Ms Sylwia Wach in her terms and conditions of employment contrary to S. 8 of the Acts, on the ground of gender and race, and then victimised her contrary to S. 74(2) of the Acts.
5.2. In accordance with Section 82 of the Acts, I hereby order that the respondent pay the complainant:
(i) € 21,000 which equals one year’s salary for the complainant according to her P60 form for 2010 (i.e. prior to her reduction of hours, and therefore income) in compensation for the effects of discrimination and
(ii) € 42,000 or the equivalent of two year’s salary in compensation for the effects of victimisation. This reflects the seriousness of the finding that the complainant found herself immediately threatened with false disciplinary charges when she exercised her right of complaint under the respondent’s own policies.
(iii) These awards are in compensation for the distress suffered by the complainant and are not in the nature of pay and therefore not subject to tax.
11 August 2014