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Embed code for: GEI 2016 Moot Problem (Brief to Counsel)
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GEI 2016 Moot Problem (Brief to Counsel)
GENDER EQUALITY INITIATIVE 2016 IN THE COURT OF APPEAL Brief to Counsel HatStreet UK Pte Ltd (HatStreet) is a travel agency company specialising in customised small group tours. HatStreet’s motto is “Travel, The Way You Want It” and the company prides itself in providing travel tours which match the clients’ needs and wants. The sales team achieves this by networking and spending time with the clients in order to understand the clients better. Once sales executives have an idea of what the clients want, they conduct research on the places the clients wish to go to and tailor their travel tours according to those expectations. Hatstreet has a professional development scheme which applies across the board for all employees in the sales department. Fresh graduates who are employed by Hatstreet start as sales executive for 3 years. Once they reach their 4th year, they will be promoted as senior sales executive. After a further 3 years, these senior sales executives then qualify to be considered for promotion as district sales manager. At this stage, promotion is discretionary and dependent on Hatstreet’s senior management’s evaluation of the person as well as achievement of sales targets. Candace Martinez is a senior sales executive at HatStreet. She began her employment there in September 2008, and was promoted to her current position in September 2011. Candace is known to be an effective salesperson, thanks to her friendliness and determination. Colleagues and clients alike have praised her for being “pleasantly persuasive”. In June 2014, Candace and her boyfriend Taran Yang found out that they were having a baby. Candace then informed her immediate boss and Sales Manager, Jenna Ilias, about the good news. Jenna, while obviously happy that her colleague is pregnant, told Candace “You have to tell Aurelien,” referring to Aurelien Chandrasekhar, the Head of the Sales Department and member of Hatstreet’s senior management. “But you know this means you have to work harder, don’t you? Babies eat up your time, sweetheart.” Candace informed Aurelien about the pregnancy the following week and told him that she is due to give birth in January 2015. She also informed him that she will be taking her maternity leave from January 2015 to March 2015. Aurelien congratulated her. As expected, Candace gave birth to a healthy baby in January 2015. While extremely excited about being first time parents, Candace and Taran found it challenging to adapt to the new responsibilities and irregular sleep cycles that came with the baby. By February 2015, Candace decided to request for flexible work arrangements with Hatstreet so that she could spend more time with her child. The senior management, including Aurelien, was surprised as this was the first time that an employee had requested for such arrangement. A formal notice was given in which Candace requested to be entitled to work from home on Monday, Wednesday and Friday afternoons. After much consideration, Hatstreet’s senior management collectively decided that they would allow Candace’s request. Candace returned to work on March 2015. Her flexible working arrangement really worked for her, as she was able to work and look after her child at the same time when at home. Aurelien told her that he cannot imagine being a mother and worker at the same time. “I don’t know how you do it”, he said. “Surely this must be difficult for you.” “Of course it is, try working on a 24-hour deadline on 3 hours of sleep!” she complained. Candace began to suffer from extreme stress by July 2015, realising that she was 87 percent behind on her sales target. Her colleagues noticed that she wasn’t as cheerful as she was before, and looks tired most of the time. When asked about the dark circles under her eyes, Candace joked “well I survive on 3 hours of sleep every night, motherhood changes you!” While most clients didn’t notice the difference, one client, Marion Nunez lodged a complaint to the Customer Service Department in July 2015 saying that she is disappointed and demanded for their travel tour plans to be managed by a friendlier person. The project was then transferred to another colleague of Candace’s. Even though she was unhappy about the matter, Candace was undeterred and continued with her work. By November 2015, Candace noticed that she was receiving less project enquiries. At this stage, she was still 39 percent behind on her sales targets. It was only until she spoke to Brandon Mostert, Hatstreet CEO’s personal assistant that she found out that a large number of projects were referred by the senior management to Philip Bruhling, another senior sales executive. Philip joined Hatstreet 3 months before Candace did and is competing for the sales manager position next year. Brandon said this was because the senior management understood that Candace’s need to care for her child is paramount, especially in the child’s early years. Unhappy, Candace approached Aurelien and told him what she had heard. She said that while she appreciates the empathy and sensitivity by the senior management, such a move should not have been made without first consulting her. She said that she has worked hard to achieve the sales target for the past years and is keen on maintaining that record for this year. “How am I supposed to meet my target if I don’t get enough projects?” In defence, Aurelien reminded her of the Marion Nunez issue and told her that the projects handled by Philip were given to him as he had “more capacity” to deal with them. “No one has ever complained to us about this system before. We have been in business for over 20 years and you are not the first woman to work with us. Nowhere in our policies do we say that employees are given different opportunities based on sex. You just have to deal with competition”, he said. “Plus, look at Jenny. She’s a single mother and she’s made it!” Candace was disappointed. She spoke to Jenna who advised her that “you can make it, it just takes time. It took me 5 years to get promoted.” As she was unsure of what to do, Candace intended to seek advice from the Equality and Human Rights Commission. However, on the day that she planned to go to the EHRC’s office at Manchester, Brandon told her that Hatstreet’s CEO had found out about it. Worried, Candace cancelled her plan. 2 weeks later on 23 December 2015 she received a show cause letter regarding Marion Nunez’s complaint in July 2015. Candace was surprised to see the letter,. She thought that the company understood the stresses that came with motherhood and felt that the show cause letter was uncalled for. She explained herself in a reply to the show cause letter, but was subsequently issued a notice to attend a disciplinary hearing on 4 January 2016. Hatstreet maintained that Marion Nunez’s complaint was a valid ground for issuing a show cause letter. Philip was promoted as Sales Manager on 14 January 2016. Disappointed with the whole ordeal, Candace filed a claim against Hatstreet at the Employment Tribunal, on the grounds of sex discrimination and victimisation. The Employment Tribunal (ET) held that Hatstreet had not discriminated Candace on the basis of sex as she was afforded equal access to opportunity as anyone else to get the promotion. However, the ET held that Candace was in fact victimised as the show cause letter and the subsequent notice for disciplinary hearing were issued as a reprisal to her intention to lodge a complaint at the EHRC. The Employment Appeal Tribunal (EAT) agreed with the ET’s decision. Both Candace and Hatstreet now seek the Court of Appeal’s decision on the following issues: 1. Whether Hatstreet had discriminated Candace on the basis of her sex in relation to her opportunity for promotion as sales manager; and 2. Whether Candace had been victimised because of her intention to lodge a complaint to the EHRC. ell I survive on 3 hours of sleep every night, motherhood changes you!” While most clients didn’t notice the difference, one client, Marion Nunez lodged a complaint to the Customer Service Department in July 2015 saying that she is disappointed and demanded for their travel tour plan