Case Number: DEC-E2012-015- Full Case Report. Equality Tribunal

• Court: Equality Tribunal
• Date: 01 February 2012
• Docket Number: DEC-E2012-015- Full Case Report

EQUALITY OFFICER'S DECISION NO: DEC-E/2012/015

PARTIES
STRZELECKA
(REPRESENTED BY RICHARD GROGAN & ASSOCIATES - SOLICITORS)

AND

EARLSFORT CENTRE HOTEL PROPERTIES LTD.
(REPRESENTED BY IBEC)

File No: EE/2009/718 Date of issue: 7 February, 2012

Headnotes: Employment Equality Acts 1998- 2008 - sections 6& 8 & race - discriminatory treatment- conditions of employment.

1. DISPUTE

This dispute involves a claim by Ms. Ewa Strzelecka, who is a Polish national, that she was (i) discriminated against by the respondent in respect of access to employment on grounds of gender, race and family status in terms of section 6(2) of the Employment Equality Acts, 1998 -2008 and contrary to section 8 of those Acts, (ii) discriminated against by the respondent in respect of her conditions of employment on grounds of gender, race and family status in terms of section 6(2) of the Employment Equality Acts, 1998 -2008 and contrary to section 8 of those Acts, (iii) harassed by the respondent on grounds of race and family status in terms of section 6(2) of the Employment Equality Acts, 1998 -2008 and contrary to section 14A of those Acts, (iv) sexually harassed by the respondent on grounds of gender in terms of section 6(2) of the Employment Equality Acts, 1998 -2008 and contrary to section 14A of those Acts and (v) dismissed by the respondent in circumstances amounting to discrimination on grounds of gender, race and family status in terms of section 6(2) of the Employment Equality Acts, 1998- 2008 and contrary to section 8 of those Acts.

2. BACKGROUND

2.1 The complainant commenced employment with the respondent as a part-time Accommodation Assistant in June, 2004 and was appointed to that role on a full-time basis in September, 2005. The complainant was on maternity leave from 1 February, 2008 - 24 November, 2008 and returned to work in the full-time position she had held immediately before that leave commenced. In June, 2009 the complainant tendered her resignation but after discussion with the respondent this was withdrawn. The complainant tendered her resignation a second time in mid-July, 2009 but remained in employment until 30 August, 2009. During this period she was given a revised contract of employment but never signed it. The complainant was not assigned any shifts after 30 August, 2009 and submits that this constitutes less favourable treatment of her on grounds of gender, race and family status contrary to the Acts. The complainant further states that the respondent denied her access to a redundancy scheme in September, 2009 and contends that this behaviour amounts to discrimination of her on grounds of gender, race and family status contrary to the Acts. The respondent rejects the complainant's assertions in their entirety. She further states that she was dismissed by the respondent in circumstances amounting to discrimination on grounds of gender, race and family status contrary to the Acts.

2.2 The complainant referred a complaint under the Employment Equality Acts, 1998 -2008 to the Equality Tribunal on 28 September, 2009. In accordance with his powers under the Acts the Director delegated the complaint to the undersigned - Vivian Jackson, Equality Officer, for investigation, decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. My investigation of the complaint commenced on 26 October, 2011 - the date the complaint was delegated to me. A hearing on the complaint took place on 2 November, 2011. At the outset of this Hearing the complainant's representative withdrew (i) all aspects of the complaint on the gender ground, including the claim of sexual harassment, (ii) those aspects of the complaint in respect of harassment of the complainant on grounds of family status and race, (iii) the alleged discriminatory dismissal of the complainant and (iv) those aspects of the complaint in respect of access to employment on grounds of family status and race.

2.3 The only aspects of the complaint contained on the original referral form which remained were those issues connected with the alleged less favourable treatment of the complainant on grounds of race and family status in respect of her conditions of employment - in particular the alleged failure of the respondent to provide her access to a redundancy package in September, 2009. However, at the outset of the Hearing the complainant's representative also sought to introduce the alleged failure of the respondent to assign the complainant shifts after 30 August, 2009 as part of the conditions of employment claim. This was the first occasion on which this matter had been raised and an issue of compliance with the timelimits in terms of section 77 of the Acts was raised. However, in an effort not to elongate the investigation I decided to take the complainant's evidence on the substantive aspects of this element of her complaint and allow the respondent to reserve its position on the matter (if required) and furnish a submission on it by an agreed date post the Hearing. I also requested that each party should file a submission on the timelimit issue. However, in the course of the Hearing the respondent's HR Manager stated she was of the view that the complainant was an employee between September, 2009 and February, 2011 - when the respondent recommenced assigning her shifts. In those circumstances I subsequently wrote to the parties advising the "shift" aspect of the complaint was properly before the Tribunal for investigation and there was no need to file submissions on the timelimit issue. However, a number of other points which arose at the Hearing required clarification and gave rise to correspondence between the parties and the Equality Officer and this process concluded at end December, 2011.

3. SUMMARY OF COMPLAINANT'S CASE

3.1 The complainant is a Polish national. She states that she commenced employment with the respondent as a part-time Accommodation Assistant in June, 2004 and was appointed to that role on a full-time basis in September, 2005. She adds that she was on maternity leave from 1 February, 2008 - 24 November, 2008 and returned to work in the full-time position she had held immediately before that leave commenced. The complainant states that she tendered her resignation in June, 2009 for personal reasons - she had childcare difficulties - but after discussion with the respondent this was withdrawn and she was given a months' unpaid leave. She states that she returned to work in early July, 2009 and worked full-time hours. In the submission filed on her behalf in January, 2010 it was alleged she was told by a member of the respondent's Management that she would have to finish full-time hours and go part-time as she had a child and it was submitted that this amounts to discrimination of her. In the course of the Hearing the complainant gave evidence that she requested part-time hours in July, 2009 because she had difficulties with childcare and was offered same in August, 2009 on foot of a revised contract of employment. The complainant added that the terms set out in the revised contract were unacceptable to her and she refused to sign it. She adds that the last shift she was assigned was 30 August, 2009. The complainant states that she never made any effort to contact the respondent seeking an explanation as to why she received no shifts after this date. In the course of the Hearing she also confirmed that she never contacted the respondent with a view to discussing the unacceptable clauses in this revised contract of employment and never signed it. She also states that the respondent made no further contact with her until Ms. D (who works in the respondent's HR Department) contacted her in late January, 2011 advising that she (the complainant) was still registered on the respondent's system as an employee and asked if she was interested in returning to work. The complainant states she advised Ms. D that she was interested in returning to work and she (the complainant) subsequently met with Ms. B (the current HR Director) and resumed work on 21 February, 2011 on a full-time basis as a member of the respondent's staff in its Accommodation Department. It is submitted on her behalf that the alleged treatment of her constitutes discrimination of her on grounds of race and/or family status contrary to...