Ms Heike Livingstone (Represented by Councilor David Hynes) Vs Richard & Nicola Odlum T/a Costcutter Express (Represented by Tom Smyth & Associates)
The dispute concerns a complaint that Richard & Nicola Odlum, trading as Costcutter Express, Baldwinstown, Co Wexford (the respondent) discriminated against Ms Heike Livingstone on the grounds of her gender contrary to the provisions of the Employment Equality Act, 1998 when her working hours were changed during her pregnancy. A separate complaint relating to the circumstances under which Ms Livingstone's employment subsequently terminated has been referred to the Labour Court.
2.1 The complainant was employed as a shop assistant at the respondent's retail grocery store at Baldwinstown, Co Wexford. When the complainant was about four months pregnant she found that she was unable to carry heavy boxes or bend down to stock low level displays but otherwise was able to carry out the full range of duties. The complainant states that her working hours were reduced and that she was placed on the later evening shift. The complainant argues that she was treated less favorably because of her pregnancy and was discriminated against on the gender ground contrary to the 1998 Act.
2.2 The Equality Authority referred a complaint to the Director on behalf of the complainant on 20th June, 2002. The Authority subsequently notified the Director on 29th January, 2003 that the it would not be providing legal representation to the complainant in this case. In accordance with her powers under section 75 of the 1998 Act, the Director delegated the case to Raymund Walsh, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Act on 4th April, 2003. Submissions were sought from both parties and a hearing of the complaint was held on 8th January, 2004. Arising from the hearing the respondent furnished further documentation on 21st January, 2004.
3. SUMMARY OF THE CLAIMANT'S CASE
3.1 The complainant states that having started work at the respondent's shop in February, 2001 she worked 32 hours per week initially, working Monday to Friday only. Due to 3 staff shortages her hours increased over a number of weeks reaching up to 40 hours per week in May and then reverted to 32 hours per week in June 2001. She found that she was pregnant in July and she worked normally up to late October when she felt that she could no longer carry heavy boxes or bend down to stock the low level displays. Around that time a colleague asked her to cover a Saturday night shift which she agreed to but when she woke up that morning she suffered from back pain. She drove to the shop and spoke to Mr Odlum who told her to take it easy for a few days. The following Monday Mr Odlum phoned her and asked her if she could return to work as another member of staff had not returned from sick leave and she agreed to come to work. The following Thursday when she was due to work an evening shift she experienced stomach cramps and Mr Odlum collected her husband so that her husband could bring her to hospital. The complainant states that Mr Odlum told her husband that it would be better if she gave up working. The complainant states that the cramps were connected to the earlier back pain and were unconnected with her pregnancy.
3.2 The complainant states that she felt better the next day and told her employer that she would be available for work the following Monday. When she came to work she was issued only 12 hours work on the 6pm to 10pm shift and was introduced to two new staff members. When she queried this with Mrs Odlum she was told that she was not fit to work full time and that since there were two additional staff her hours would be reduced anyway. The complainant states that she was told the two new staff were there to replace her when she was having her baby. The complainant points out that the baby was not due until the following March. She contacted the Citizens Information Centre in Wexford and was told that maternity leave would not start until four weeks before confinement and that her employer had no right to reduce her hours without consultation. When she went back to her employer with this information she states that Mr Odlum said to her "you want us to pay your maternity leave ?". He then added that there would be no job for her in the shop after Christmas.
3.3 The complainant states that she signed on at Wexford Social Welfare Office on 12th December in order to make up for the days she was not working. Her last day at the shop was 22nd December when Mr Odlum paid her last wages and gave her a bottle of whiskey stating that she may be due some holiday pay but that the shop was not doing as well as expected. When she was leaving she asked Mr Odlum for her P45 and was told that she could get it from his accountant the second week in January, 2002. The complainant gives further detail in her submission about exchanges with the respondent in relation to the P45 and whether or not she had resigned from the employment voluntarily however as these statements relate to her complaint of alleged discriminatory dismissal which is before the Labour Court I do not consider it either necessary or appropriate to go into that evidence here.
4. SUMMARY OF RESPONDENT'S CASE
4.1 The respondent rejects the allegation that it discriminated against the complainant on the grounds of her gender arising from her pregnancy. The respondent states that the complainant was recruited on a flexible hourly contract or 'part-time flexitime' contract with a minimum of twelve hours work per week and argues that the complainant herself had requested shorter shifts during her pregnancy from November, 2001 onwards. The respondent makes the point that there was no complaint from the complainant when hours were reduced in June 2001 as part of general cutbacks arising from pressure from the bank when a building extension was completed.
4.2 The respondent makes the case that it had a cordial relationship with the complainant and that it assisted the complainant in ways that went beyond the normal employer employee relationship. The respondent refers to kitchen equipment which was removed as part of the refurbishment and given to the complainant for her own use. The respondent also states that it facilitated the complainant in the purchase of a car which it was selling and allowed the complainant to pay for the car by weekly installments. The respondent states that the complainant stopped the repayments when there was still an amount outstanding and I refer to this matter in my conclusions at 5.3 below.
4.3 The respondent states that on the occasion when Mr Odlum collected the complainant's husband so that she could be brought to hospital, he did suggest that the complainant avail of health and safety leave prior to maternity leave because of her medical condition as he felt that the manual handling aspects of the work could be too much for her and advised her to get medical advice. The respondent states that when the complainant returned to work on 19th November, 2001 she stated that she would work until Christmas only so that she would get her bonus and would then cease work until after the baby was born. The respondent states that Ms Rita Brady who is the mother of Mrs Odlum, started work as Assistant Manager in the shop from April, 2001 because Mrs Odlum herself was pregnant and was experiencing health problems and because another member of staff had left. The respondent rejects the complainant's recollection of her hours worked after she returned to work and states that on week ending 19 November, 2001 she worked 20 hours not 12, the following week she worked 21 not 12 and the following week she worked 16 not 20 as she had requested four by four hour shifts. The respondent states that the complainant was facilitated in every way possible with regards to hours, non-packing of shelves or handling of boxes, where possible. The question of health and safety leave was again raised with the complainant during the week ending 10th December 2001 when she worked 16 hours as against the 12 hours stated by the complainant. The respondent stated that the complainant never provided any medical certification in relation to her condition and refused to consider health and safety leave. The respondent confirmed that an extra member of staff was recruited in October, 2001 but argues that this was as a response to the complainant's request for shorter hours.
4.4 The respondent provided a table (see Appendix 1) of the hours worked by the complainant and wages paid over the 45 weeks of her employment. The respondent states that it was a matter for the complainant to decide whether she wished to work after Christmas or not but that she opted not to. The respondent's submission goes into further detail in relation to the matter of the termination of the complainant's employment however as already stated above, I regard that as a matter for the Labour Court and I do not consider it necessary to elaborate here.
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 The European Court of Justice in Dekker v Stichting Vormingscentrum Voor Jong Volwassen (VJV Centrum) Plus1 found that pregnancy is a uniquely female condition and that where a woman experiences unfavourable treatment on grounds of pregnancy such treatment constitutes direct discrimination on the grounds of gender within the meaning of the Equal Treatment Directive2, even though there may be no male comparator. The complainant in the present instance alleges discriminatory treatment arising from her pregnancy and the matter for consideration is whether or not the respondent discriminated against the complainant on the gender ground in terms of Section 6(2)(a) of the Employment Equality Act, 1998 contrary to Section 8 of that Act. In making my decision I have taken into account all of the evidence, both written and oral, made to me by the parties to the case.
5.2 The fact that the complainant had no written contract setting out her terms and conditions of employment and the fact that she received no payslips are uncontested. The complainant's representative returned to this issue on a number of occasions at the hearing and the respondent for its part stated that the Odlums were new to the business at the time and that they applied the terms and conditions of employment for employees in the retail grocery trade as laid down in the Joint Labour Committee order. They added that written contracts and payslips were now provided to employees. While a written contract would have clarified the complainant's terms and conditions of employment, I regard any complaint in this regard as a matter for another forum. Whether or not the treatment complained of culminated in discriminatory dismissal is a matter for the Labour Court and a complaint in that regard is before the Labour Court. The respondent's representative indicated that his submission to this Tribunal was similar to that which he had sent to the Labour Court. The issue before me is whether or not the complainant was subjected to discriminatory treatment because of her pregnancy between July, 2001 and her last day of work with the respondent.
5.3 I note that the respondent has described a cordial relationship between the Odlums and the complainant and describes assistance given to the complainant in relation to the acquisition of a motor car and the use of kitchen equipment which had been removed from the shop as part of the refurbishment. I note that the parties are now in dispute in relation to monies which the respondent states it is owed by the complainant in relation to the car. The respondent produced documentary evidence in support of its claim that it is owed several hundred Euro by the complainant in relation to the car, evidence which I considered the complainant was unable to refute. I consider this matter to be relevant to the investigation to the extent that it supports the respondent's contention that it was supportive of the complainant and was responsive to her needs and raises questions about the credibility of the complainant's evidence.
5.4 It is clear that the hours worked by the complainant fluctuated from the time she started work in mid February, 2001 and the respondent has pointed out several inaccuracies in the complainant's recollection of her hours worked. The table below sets out the average weekly hours worked each month from March to December based on figures supplied by the respondent (the full weekly table is given at Appendix 1) :
I note that the complainant did not contest the tabulated hours and remuneration produced by the respondent and I have no reason to doubt its accuracy. The hours worked in the months March to May were higher than the months worked thereafter however the respondent has stated that the hours were reduced in July as a result of cutbacks and that they picked up thereafter and this is reflected in the above figures. The respondent stated that when the complainant returned to work after being unwell she requested four hour shifts and was assigned evening shifts so that she would not have to carry heavy boxes or stack ground level shelves.
5.5 The Safety, Health and Welfare at Work (Pregnant Employees Etc.) Regulations, 2000 (S.I. 218 of 2000) sets out the responsibilities of employers in relation to the protection of the health and safety of pregnant employees. While it is not the function of this Tribunal to adjudicate on the correct application of these regulations, the issues involved are central to this investigation. The above regulations require an employer, once informed of an employee's pregnancy which is duly certified by a medical practitioner, to assess the risks to the health and safety of the employee and any possible effect on the pregnancy arising from the work. Where a risk has been identified and it is not possible to protect the health and safety of the employee through protective or preventative measures, it is the duty of the employer to temporarily adjust the working conditions and/or working hours of the employee so that the risk is avoided or to provide alternative work. If this is not possible then the provisions of the Maternity Protection Act, 1994 No.34/1994 require that health and safety leave be granted to the employee. The respondent in this instance has demonstrated a clear lack of formality and adherence to the basic statutory duties of an employer i.e. with regard to the provision of a written contract of employment and payslips. This lack of formality would also appear to extend to its approach to the complainant's pregnancy and suitability for certain duties. There is no dispute that the respondent was aware of the complainant's pregnancy although no medical certification was provided. The complainant expressed difficulty with certain tasks and the respondent, following what would appear to be a de facto assessment of the risks, adjusted the complainants duties and hours by assigning her to the evening shifts so that she would not have to carry heavy items or bend down to stock low shelves. The respondent makes the case that the complainant herself had requested shorter hours although there is a conflict of evidence in this regard.
5.6 In arriving at a conclusion therefore I note that the complainant's working hours fluctuated considerably before her pregnancy became known. A conflict of evidence exists between the parties as to whether or not the complainant herself requested a shorter working week after she became pregnant, however having regard to my reservations regarding the credibility of the complainant's evidence referred to at 5.3 above I am, on balance, prepared to accept the respondent's evidence that the complainant herself had given some indication that she wished to work a shorter week. The parties are in agreement that the complainant had difficulty with bending and lifting as her pregnancy developed and I outlined at 5.5 above an employer's statutory duties with regard to the health and safety of a pregnant employee. Clearly any measures taken by the employer in this regard should be objective and proportional having regard to what is medically necessary in the individual case. There is a further conflict of evidence between the parties as to whether or not the respondent suggested to the complainant that she seek medical advice in relation to her fitness to work. Given that the employer went out and collected the complainant's husband on one occasion so that she could be brought to hospital, it appears credible to me that such a suggestion would have been made at that stage as claimed by the respondent. However no medical assessment was furnished by the complainant. Having regard to all of the evidence therefore, I must conclude that the measures taken by the employer do not amount to prima facie evidence of discrimination on the gender ground.
6.1 On the basis of the foregoing, I find that Odlum's Costcutter Express did not discriminate against the complainant on the gender ground in terms of Section 6(2)(a) of the Employment Equality Act, 1998 and contrary to the provisions of Section 8 of that Act.
1Dekker v Stichting Vormingscentrum Voor Jong Volwassen (VJV Centrum) Plus ECJ C-177/88  ECR I-3941
2Council Directive 76/207/EEC