(represented by the Equality Authority)
Xerox (Europe) Limited
(represented by Matheson Ormsby Prentice Solicitors)
File No: EE/2003/038 Date of issue: 13 November 2006
1.1 The case concerns a claim by Ms. Yvonne Pedreschi that Xerox (Europe) Limited, Dublin, discriminated against her on the gender ground in terms of section 6(2)(a) of the Employment Equality Act, 1998 in contravention of section 8 of the Act in relation to her conditions of employment.
2.1 The complainant alleges that the respondent directly discriminated against her on the gender ground in relation to her conditions of employment. She alleges that the respondent pressurised her in relation to providing appointment cards and obtaining confirmation of the medical visits concerning her pregnancy and that her work tasks were redistributed prior to going on maternity leave. The respondent denies the complainant's allegations of discrimination.
2.2 The complainant referred a complaint under the Employment Equality Act 1998 to the Director of Equality Investigations on 30 January 2003. On 8 October 2004, in accordance with her powers under section 75 of that Act, the Director delegated the case to Mary Rogerson, 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. A submission was received from the complainant on 8 March 2006 and from the respondent on 26 May 2006. A joint hearing of the claim was held on 4 October 2006.
3. SUMMARY OF THE COMPLAINANT'S SUBMISSION
3.1 The complainant submits that she was treated in a less favourable manner on the grounds of gender in that she was discriminated against at work because of her pregnancy and when she complained about her treatment, she was unfairly selected for redundancy.
3.2 The complainant was employed as a payroll administrator by the respondent in September 1999. In March 2002, when she was approximately six weeks pregnant, she informed her Manager, Ms. K that she was pregnant. She explained that as well as attending for checkups and ante-natal classes, she would have to attend special foetal monitoring and an amniocentesis test during her pregnancy due to possible complications. The complainant formally notified her employers of her pregnancy on 11 June 2002.
3.3 In or around the end of June 2002, the complainant was put under great stress from Ms. K. Ms. K demanded that the complainant should not only inform her of the dates and give copies of her appointment cards but that she should also prove that she attended on the relevant dates by obtaining letters confirming her attendance from the various parties, ie. consultant, hospital etc. The practice was highly unusual and the hospital was surprised to be asked for same. The hospital at first provided the information.
3.4 When Ms. K went on holidays around the end of July, the complainant gave the information concerning her appointments to Ms. C in Human Resources. Ms. C asked for a breakdown of the visits as to whether they were ante-natal, regular check-ups or foetal monitoring. The complainant was upset and so advised Ms. C. Ms. C replied that if the complainant had a difficulty with this that she would contact the hospital and verify the complainant's attendance. The complainant was taken aback by the proposal.
3.5 At her appointment on 31 July 2002, the complainant asked her consultant for a letter confirming that she attended her appointment. He was annoyed and stated in the letter that "we do not have the time to be doing separate letters for every visit." When the complainant visited her GP in early August, she explained that she felt under tremendous pressure due to having to produce certificates of attendances. He was so concerned at the strain on the complainant that he wrote to the company's doctor outlining his concerns. The company's doctor replied that it was the responsibility of Human Resources Department to monitor personal medical appointments.
3.6 The complainant was also put under further stress in relation to her work. Various changes were made to work practices in the office. Certain tasks which had been part of the complainant's duties during her employment were given to her colleagues in the payroll section. The re-assignment of duties was done with no consultation with the complainant. At no point was any complaint made to the complainant about the way in which her duties were carried out. As a result of the re-assignment of her duties, she resorted to filing documents. Her normal work schedule was only fully re-assigned to her when her colleagues, Ms. K and Ms. Y went on holidays.
3.7 In or around mid-July, she felt so isolated due to the constant pressure on her to provide written confirmation for all appointments and also due to the lack of consultation in relation to the re-distribution of her work that she asked if she could meet with Ms. K. That was not possible at the time. She also requested a meeting by e-mail dated 16 July. The e-mail was not responded to until 24 July when Ms. K said that she would meet with the complainant on 29 July. At that point, the complainant contacted Mr. P, HR Manager and told him of her distress as she felt her requests were being ignored in that there was a long gap between her request and the actual meeting. As a result, the meeting was brought forward to 24 July and this caused further annoyance to Ms K.
3.8 At the meeting with Ms. K, the complainant's issues were not seen to be in any way relevant or serious despite her explaining the stress that she was under. The complainant later contacted Mr. P who arranged an appointment to visit the company doctor on 30 July. As a result of the stress of the constant monitoring and demands that the complainant provide letters from her consultants and the hospital confirming attendance and the fact that she felt completely undermined because duties she always carried out had been taken from her, the complainant was advised by her doctor to take sick leave with effect from 12 August 2002.
3.9 In early September, the complainant was contacted by Ms. K who asked if she would meet with her and a member of HR informally. After contacting her doctor, the complainant agreed to the meeting. Ms. C from HR and Ms. K attended the meeting. The complainant was advised that her job was to be made redundant with effect from 4 October, five working days prior to the commencement of her maternity leave. The complainant was also advised that she could opt for redundancy or redeployment and that if she wished to be redeployed, she would have to attend interviews prior to 4 October. The complainant considered that as she had been extremely stressed at work and was now on sick leave that the offer of redeployment was an empty one.
3.10 At that point in her pregnancy, the complainant had a number of problems including threatened pre-eclampsia. Given the lack of detail in respect of redeployment and the pressure of doing interviews, the complainant had no option but to opt for redundancy. The complainant met with Ms. C a few days later and accepted the redundancy package. As far as the complainant was concerned, the act of forced redundancy was the culmination of severe pressure put on her since she announced that she was pregnant.
4. SUMMARY OF THE RESPONDENT'S SUBMISSION
4.1 The respondent denies the complainant's allegations of discriminatory treatment on the gender ground. The complainant was not put under great stress as is alleged. The complainant's requests and requirements were treated in exactly the same way as all other women who work for the respondent have been treated. Ms. K and Ms. C treated the complainant fairly and with dignity and adhered to the respondent's policies in full.
4.2 The respondent merely requested the complainant's appointment card in the same way as with all pregnancies. This is in accordance with legislation and the respondent's maternity policy. It was the complainant herself who requested the note from the consultant. Such request was not made at the request of the respondent as it did not require such a note. The respondent merely required a copy of the appointment card and appointment cards were not forthcoming. Nothing further was asked of the complainant beyond her appointment card which she refused to provide on many occasions. The complainant was allowed time off and full rights in relation to her pregnancy.
4.3 The company doctor (Dr. O' B) is an independent doctor and there is Doctor/Patient confidentiality. Dr. O' B advised the complainant's doctor that she was unable to discuss medical matters with HR. She suggested that the complainant's doctor speak directly with Mr. P in Human Resources.
4.4 The respondent submits that it is incorrect to say that the complainant's e-mail of 24 July went unanswered. It absolutely denies that the action of the respondent or Ms. K were responsible for the complainant's sick leave and absence from work.
4.5 The role of Payroll Administrator was being made redundant. The complainant was advised of this and it was explained to her that her redeployment would be sought; however, the complainant insisted that she would only do another job as a payroll administrator. This was not possible as there was only one such role and it was being eliminated. The reason the position became redundant was because of a reduction in the original number of employees in the organisation.
4.6 The respondent denies the complainant's allegation that certain tasks that were part of the complainant's duties during her employment were given to her colleagues in the payroll section.
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 In this case, the complainant alleges that the respondent directly discriminated against her on the gender ground in relation to her conditions of employment. She alleges that the respondent pressurised her in relation to providing appointment cards and obtaining confirmation of the medical visits concerning her pregnancy and that her work tasks were redistributed. I am not investigating a claim in relation to dismissal as at the time that the claim was referred to the Tribunal, the Tribunal did not have jurisdiction in relation to dismissals and such claims were referred to the Labour Court. I will consider whether the respondent directly discriminated against the complainant on the gender ground in terms of section 6(2)(a) of the Employment Equality Act, 1998 and in contravention of section 8 of the Act. In making my Decision in this case, I have taken into account all of the evidence, both written and oral, submitted to me by the parties.
5.2 Section 6(1) of the Employment Equality Act, 1998 provides that:
"Discrimination shall be taken to occur where, on any of the grounds mentioned in subsection (2) (in this Act referred to as "the discriminatory grounds"), one person is treated less favourably than another is, has been or would be treated."
Section 6(2) provides that as between any two persons, the discriminatory grounds are, inter alia:
(a) that one is a woman and the other is a man (in this Act referred to as "the gender ground"),
European Court of Justice jurisprudence in relation to pregnancy
5.3 The European Court of Justice established a number of years ago in a case which concerned the refusal to appoint a woman on the ground of her pregnancy that pregnancy discrimination was direct discrimination on grounds of sex and stated:
"...... only women can be refused employment on grounds of pregnancy and such a refusal therefore constitutes direct discrimination on grounds of sex." (1)
In Webb, a case which concerned dismissal whilst pregnant, the European Court of Justice stated:
"there can be no question of comparing the situation of a woman who finds herself incapable, by reasons of pregnancy............, of performing the task for which she was recruited with that of a man similarly incapable for medical or other reasons. .......pregnancy is not in any way comparable with a pathological condition," (2)
5.4 A number of years later, the Court went on to find that:
"...... protection against dismissal must be afforded to women during maternity leave, the principal of non-discrimination, for its part, requires similar protection throughout the period of pregnancy. .............dismissal of a female worker during pregnancy for absences due to incapacity for work resulting from her pregnancy is linked to the occurrence of risks inherent in pregnancy and must therefore be regarded as essentially based on the fact of pregnancy. Such a dismissal can affect only women and therefore constitutes direct discrimination on grounds of sex." (3)
The Court continued:
".... where a woman is absent owing to illness resulting from pregnancy or childbirth, and that illness arose during pregnancy and persisted during and after maternity leave, her absence not only during maternity leave but also during the period extending from the start of her pregnancy to the start of her maternity leave cannot be taken into account for computation of the period justifying her dismissal under national law. As to her absence after Maternity leave, this may be taken into account under the same conditions as a man's absence, of the same duration, through incapacity for work." (4)
5.5 Whilst these cases related to appointments and dismissals, the approach adopted in these cases has also been recognised as extending to the terms and conditions of employment. The European Court of Justice has stated:
"It must therefore be held that a woman who is accorded unfavourable treatment regarding her working conditions, in that she is deprived of the right to an annual assessment of her performance, and, therefore, of the opportunity of qualifying for promotion as a result of absence on account of maternity leave, is discriminated against on grounds of her pregnancy and her maternity leave. Such conduct constitutes discrimination based directly on grounds of sex within the meaning of the Directive." (5)
5.6 Whilst the Court has acknowledged the special circumstances which pregnant employees find themselves in and recognised that special protection should be afforded to such women, it also acknowledged that such special protection cannot prevail for an indefinite period and that it ceases at a particular point in time. Thus a female employee is protected from less favourable treatment that results from her pregnancy throughout the pregnancy and all the way through to the end of her statutory period of maternity leave.
Caselaw on establishing a prima facie case of discrimination
5.7 Council Directive 97/80 EC on the Burden of Proof in Cases of Discrimination Based on Sex was transposed into Irish Law by the European Communities (Burden of Proof in Gender Discrimination Cases) Regulations, 2001. Article 3(1) of the Regulations, which transposed Article 4 of Council Directive 97/80/EC provides:
"Where in any proceedings facts are established by or on behalf of a person from which it may be presumed that there has been direct or indirect discrimination in relation to him or her, it shall be for the other party concerned to prove to the contrary."
The Labour Court in the case of The Southern Health Board v. Dr. Teresa Mitchell (6) considered Article 4 of the Directive and the extent of the evidential burden which a claimant must discharge before a prima facie case of discrimination on grounds of sex can be made out. It stated that the claimant must:
".... "establish facts" from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination. It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there was no infringement of the principle of equal treatment."
The Labour Court went on to hold that a prima facie case of discrimination is established if the complainant succeeds in discharging that evidential burden. If the complainant succeeds, the respondent must prove that s/he was not discriminated against on grounds of their sex. If the complainant does not discharge the evidential burden, the claim cannot succeed.
5.8 More recently, the Labour Court has stated in a case concerning discrimination on the gender ground:
"The correct test for deciding if the burden of proof shifts to the respondents in this case is that formulated by this Court in Southern Health Board v Dr. Teresa Mitchell.
It is a matter for the complainant to prove on the balance of probabilities the primary facts on which she relies in making her case of discrimination. Then it is for the Court to decide if those facts are of sufficient significance to raise a presumption of discrimination. If the Court is so satisfied, the onus is then shifted to the respondents to prove that there has been no infringement of the principle of equal treatment." (7)
Issue whether the burden of proof is satisfied in this case
5.9 The complainant alleged in her written submission that around the end of June, beginning of July that Ms. K, her manager in addition to seeking details of her appointments and copies of her appointment cards also sought confirmation that appointments had been attended. At the hearing, she submitted that appointment cards became an issue after the complainant's official confirmation to Human Resources. She submitted that she always provided her appointment cards and left them under Ms. K's keyboard. The respondent in its written submission stated that it merely requested the complainant's appointment card in the same way as with all pregnancies and that the letter from the complainant's consultant was obtained at the complainant's request and not the respondent. It further submitted that "Appointment cards were not forthcoming." Ms. K is currently on long term sick leave from the company and did not give evidence at the hearing.
5.10 The respondent's maternity policy at that time stated:
- The right to paid time off for a 'medical or related appointment' is subject to an employee giving written notification of at least two weeks beforehand detailing the date and time of the appointment.
- The immediate supervisor may request an appointment card indicating the time and date of appointments.
- If the appointment is urgent, the employee must advise the immediate supervisor in writing within one week after the appointment and give an indication of the circumstances of the non-compliance.
I note that the respondent's policy does not state that the immediate supervisor must request an appointment card. The complainant formally notified her employer of her pregnancy on 11 June 2002 using the standard form. That form requests details of any scheduled medical appointments. In the box where it is possible to list scheduled appointments, the complainant stated and underlined "Combined Care" indicating that she was under the medical supervision of her General Practitioner and the Maternity Hospital. She further listed two appointments with the hospital on 20 June 2002 and 30 July 2002 and stated that a doctor's appointment was to be confirmed.
5.11 At the hearing, the complainant submitted that there were eight appointments in total either with her GP, the ante natal clinic or foetal assessment prior to her going on sick leave on 12 August 2002. The complainant's first appointment at the hospital was on 16 April and at that appointment, the complainant was provided with a letter certifying that she was attending the ante natal clinic and her expected date of delivery. The next appointment was on 24 April 2002 at Foetal Assessment which is evidenced by an appointment card from the hospital. The complainant submitted that there were two appointments for which she did not have an appointment card or confirmation of attendance and these appointments were not anticipated and were for an amniocentesis on 8 May 2002 and a follow up check up on 4 June 2002. The complainant in an e-mail to her manager on 28 June 2002 advised that she had an appointment on Tuesday, 2 July 2002. In that e-mail, the complainant also refers to having two more confirmed appointments, one for scan and one for check-up on 30 and 31 July and that she was trying to get them both scheduled for the same day. A later e-mail dated 3 July 2002 indicates that the appointment of 30 July was cancelled and the appointment for 31 July still stood. The complainant in that e-mail also stated that she had copied the appointment card for her manager's records. A copy of the complainant's appointment cards showing ante-natal appointments on 30 and 31 July and an appointment at the Foetal Assessment Centre on 31 July 2002 were submitted. A copy of another appointment card also refers to an appointment on 19 June 2002 (originally 20 June).
5.12 A letter from the complainant's consultant dated 31 July 2002 in relation to her appointment on that date states that the complainant "will need to attend regularly for classes and check-ups. We do not have the time to be doing separate letters for every visit." The respondent submitted at the hearing that the records they had in relation to the complainant's appointments were the ones submitted as part of the complainant's submission. In relation to whether the respondent had received a copy of the complainant's appointment card as per her e-mail of 3 July 2002, the respondent submitted that it could not be categorical as the complainant's manager would have kept the appointment card and it would be on the holiday file and that it did not know where that file is now. It did not indicate that any efforts had been made to ascertain the whereabouts of the file and ascertain whether copies of the complainant's appointment cards were on the file. On 16 July 2002, the complainant e-mailed her manager seeking a meeting some time that morning. Ms. K responded on the afternoon of the same day saying that she had to meet with Standards and Controls that afternoon and needed to leave the afternoon free as she had not been given a definite time. She proposed that they could meet the next morning if she could get a room. On 24 July, the complainant e-mailed her manager again seeking a meeting. On the same date, Ms. K e-mailed the complainant to say that she had booked the HR Meeting room for 29 July. On the following morning, the complainant e-mailed her manager again asking if it would be possible to organise the meeting that day as it was over a week age since her initial request and she really needed to talk to her. Later that day, her manager, e-mailed her stating that she would arrange a meeting for the afternoon. The complainant submits that Ms. K only agreed to the meeting after the intervention of Mr. P in Human Resources. At the hearing, the complainant confirmed that only four people including the complainant herself and Ms. K worked in the Payroll Department. In this regard, it may be considered to be a little unusual that a Manager of three staff was not in a position to meet with one of them until 29 July 2002 albeit that on 16 July 2002, a request for a meeting that day was made. It does not appear that any clarifications were made by Ms. K to ascertain the reason for the meeting or the urgency of the need for a meeting with the complainant in order that her priorities might be re-assessed.
5.13 A further e-mail from Ms. K to the complainant dated 29 July 2002 States "Could you arrange to get confirmation of your combined hospital and doctor's visits for me by the time I return, so that I can place them on file." It appears that at that stage, the complainant's Manager was seeking confirmation of attendance which is not in accordance with the Respondent's Maternity Policy which provides that the immediate supervisor may request an appointment card indicating the time and date of appointments. On 9 August 2002, the complainant e-mailed Ms. C in Human Resources and stated "As requested by you today, this is a combination of ante-natal/foetal assessment which is listed under ante-natal care. ...... My Consultant [Dr. X] can be contacted, if there are any issues regarding having time off." The complainant then goes on to list eight appointments, seven of which are with the hospital and one with her GP. The complainant submitted that when she provided the information concerning her appointments to Ms. C as Ms. K was on holidays that Ms. C requested a breakdown of the visits in terms of whether they were ante-natal, regular check-ups or foetal monitoring. Ms. C submitted in evidence at the hearing that Ms. K came to her at one point and asked was it in order for her to ask the complainant for appointment cards as they were not forthcoming. She submitted that she did not ask the complainant for details of her appointments and that the e-mail came to her unsolicited. She submitted that subsequently in conversation with the complainant regarding the e-mail, she asked her if her appointments were for ante-natal classes or appointments as there was no entitlement to paid time off for classes. She accepted that she did say to the complainant that she could give the hospital a call to clarify matters but that it was not meant as a threat at all. Her evidence contradicts the statement in the complainant's e-mail which states that the information in relation to her appointments was requested by Ms. C. There was no evidence of an e-mail response by Ms. C correcting the complainant's statement if it was incorrect that the details of her appointments had not been requested.
5.14 I note that on 13 August 2002, the complainant's GP wrote to the company's Occupational Physician which refers to the complainant having "discussed with me on two occasions in recent weeks the difficulties that she has encountered in having to justify and explain her normal and routine ante-natal, foetal assessment and combined ante natal visits." I have considered the complainants' notification of pregnancy form and that clearly refers to appointments with the hospital on 20 June 2002 and 30 July 2002 with a doctor's appointment to be confirmed. I have also considered the complainant's e-mail of 28 June 2002 referring to appointments on 2 July 2002 and on 30 and 31 July 2002. I have further reconsidered the complainant's e-mail of 3 July 2002 wherein she indicates that she cancelled the appointment for 31 July but that the one for 31 July still stands. That e-mail states that the complainant copied the appointment card for her manager's records. There was no evidence that a further e-mail was sent to the complainant by her manager indicating that she did not receive the appointment card. A copy of an appointment card indicating an appointment on 19 June was furnished in evidence by the complainant and she submitted that she gave all appointment cards to her manager. Whilst the respondent submitted that appointment cards were not forthcoming, that statement does not appear to be correct in the light of the complainant's e-mails and the respondent did not furnish any evidence in support of its contention. It could not clarify whether the copies of the appointment cards were in its possession arising from the complainant's submission or whether these might be on the complainant's holiday file as retained by her manager. It did not indicate that any efforts were made to locate the whereabouts of the file. It also appears that on 9 August 2002 at the request of Ms. C in Human resources, the complainant provided a breakdown of her visits to that date. The e-mail from Ms. K to the complainant dated 29 July 2002 supports the complainant's contention that she was asked to obtain confirmation of her visits.
5.15 I find that the evidence does not support the respondent's contention that appointment cards were not forthcoming or that she did not notify her manager of her appointments. The complainant has accepted that she did not have appointment cards for the amniocentesis on 8 May 2002 and the follow up appointment on 4 June 2002 which would have been outside the usual appointment schedule and the respondent did not dispute that the complainant had complications during pregnancy. I consider that if a particular issue arose with these appointments or any other appointments, the complainant should have been given a copy of the respondent's maternity policy, had the particular issue arising explained to her by her manager and given clear instructions in relation to what was required in order to comply with procedures. This does not appear to have happened and instead, it appears that the complainant eventually had to seek a meeting with her manager, that Human Resources became involved in the matter
of appointments and that confirmation of appointments were sought by the complainants' manager. On the balance of probabilities, I find that the complainant was treated less favourably at work due to her pregnancy and was therefore discriminated against on the gender ground.
5.16 This decision should not be interpreted as indicating than an employer does not have the right to seek advance notification of pregnancy related appointments. However, any issues arising in relation to such notifications should be handled in a fair and transparent manner.
5.17 The complainant also alleges that certain tasks which had been part of the complainant's duties during her employment were given to her colleagues in the payroll section and that as a result she resorted to doing filing mainly. The complainant submitted in evidence a copy of her own diary which shows tasks scheduled on a daily basis. Whilst the diary indicates a considerable reduction in scheduled tasks for the months of April 2002, May 2002 and June 2002 with an increase again in July 2002 which the complainant submits was due to meetings and pending holidays, I consider that this evidence must be approached with caution given that the records were created by the complainant and that there is no independent verification. Ms. Y, a Payroll Officer who was more senior to the complainant and who worked with the complainant and continues to work for the respondent gave evidence that the duties were the same for the whole team. She submitted that everybody did the same duties and that the team operated a rotating system of work in order to have knowledge of the whole area. Taking into account the evidence as a whole, I find that there is insufficient evidence to support the complainants' contention that her work schedule changed after she became pregnant. This should not be interpreted as a finding that the complainant's work schedule did not change.
6.1 On the basis of the foregoing, I find that 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 the Act in relation to her employment.
6.2 In accordance with section 82 of the Employment Equality Act 1998, I hereby order that the respondent:
(i) pay the complainant the sum of €7000.00 compensation for the effects of the act of discrimination. This figure represents compensation for infringement of her rights under equality legislation in relation to discrimination in her employment and does not include any element relating to remuneration.
13 November 2006