Ms Louise Swift
(Represented by Mac Sweeney & Company, Solicitors)
(Represented by IBEC)
The dispute concerns a complaint that the Wyatt Hotel, Westport discriminated against the complainant on the family status ground contrary to the provisions of the Employment Equality Acts, 1998 and 2004 (referred to here as the Act) .
2.1 The complainant had been employed as a waitress at the respondent hotel since May, 2003. Having notified the respondent in February, 2004 that she was pregnant, the complainant alleges the she was subjected to discriminatory treatment and harassment arising from her pregnancy, contrary to the Act.
2.2 The complainant referred a complaint to the Director of the Equality Tribunal on 13th September, 2004. The parties attempted unsuccessfully to resolve the matter at mediation and the complainant requested a resumption of the investigation on 19th April, 2005. In accordance with her powers under section 75 of the 1998 Act, the Director delegated the case to an Equality Officer, for investigation, hearing and decision on 1st July, 2005 and for the exercise of other relevant functions of the Director under Part VII of the Act. The Equality Officer to whom the complaint had been delegated requested, for personal reasons, that the complaint be delegated to another Equality Officer and the Director delegated the complaint to Raymund Walsh on 1st February, 2006. A hearing of the complaint was held on 31st March, 2006. Arising from the hearing additional material was provided by the respondent and further correspondence ensued up until 20th June, 2006.
3. SUMMARY OF THE CLAIMANT'S CASE
3.1 The complainant was employed as a waitress at the Wyatt Hotel, Westport and states that it is undisputed that she had an exemplary work record prior to the events which are the subject of the complaint. The complainant alleges that following her notification to the respondent in February, 2004 that she was pregnant she experienced unfavorable treatment as follows :
- her working hours were reduced against her wishes from the normal allocation of between 25 and 35 hours per week to as little as 8 hours per week on occasions
- she was rostered to work from 7.30 a.m. on a number of occasions where it had been previously agreed that she would not start work until 8.30 a.m. as she had a young daughter to attend to
- she was called to a meeting with the hotel manager on or about 26th May, 2004 and accused of laziness. When she stated that she was being discriminated against the manager stated that he was not discriminating against her by reason of her pregnancy even though she had not mentioned pregnancy as the reason for the alleged discrimination. The manager then went on to suggest that perhaps her laziness arose from her pregnancy and that she could not continue working until she was medically certified as fit for work. The complainant states that her next shift was cancelled and that she was effectively suspended at this point. The complainant states that she had never complained of being sick although she had stated that the dining room was unbearably stuffy on occasions. She attended her doctor and was certified as fit for work and resumed work some four days after the meeting. She states that she subsequently attended her doctor in relation to work related stress. The complainant did not return to work for the respondent after her statutory maternity leave and took up a new position as a customer service representative at a local branch of a major supermarket chain.
4. SUMMARY OF RESPONDENT'S CASE
4.1 The respondent contends that it did not discriminate against the complainant on the family status ground and states that a complaint of alleged discriminatory treatment arising from pregnancy does not fall within the family status ground. The respondent also rejects the allegation of harassment. The respondent rejects the allegation that the complainant's hours were reduced and that she was required to start earlier shifts following the notification of the respondent that she was pregnant or that this practice ceased when her solicitor wrote to the respondent in the matter as suggested by the complainant. The respondent furnished a record of the hours worked by the complainant from January to July 2004 and states that the record confirms this. The respondent states that no agreement existed with the complainant's supervisor that she would not start work before 8 a.m. and furnished details of the complainant's starting times over the period in question and states that the record shows that the pattern of early starts was unaffected by her pregnancy.
4.2 The respondent confirms that for the first nine months of her employment at the hotel the complainant had a very good work record but states that from March 2004 on her performance and attitude towards work became an issue. The respondent refers to complaints from another staff member about her use of her mobile phone in the restaurant, the witnessing by the manager of her using a walkman while on duty and challenging her on the matter and her response that 'she was bored with the work' and her unilaterally changing her shift arrangements at short notice without reference to the restaurant manager. Regarding the meeting with the restaurant manager and the general manager, the respondent states that the complainant was called to the meeting to discuss concerns that had arisen in relation to her work performance and states that her pregnancy was not an issue until the complainant herself raised the matter suggesting that she was being singled out because she was pregnant. The respondent states that having regard to its duty of care to a pregnant employee, the complainant was told that if her pregnancy was affecting her work she would have to attend her doctor and get a certificate confirming that she was capable of performing her duties before working her next shift. She was also told that she would in future be rostered with the restaurant manager so that her performance could be monitored and to whom any difficulties should be referred.
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 The European Court of Justice in Dekker v Stichting Vormingscentrum Voor Jong Volwassen (VJV Centrum) (1) Plus found that pregnancy is a uniquely female condition and that where a woman experiences unfavorable treatment on grounds of pregnancy such treatment constitutes direct discrimination on the grounds of gender within the meaning of the Equal Treatment Directive (2). The complainant in the present instance alleges discriminatory treatment and harassment arising from her pregnancy although her legal representative has highlighted the family status ground on the complaint form as the discriminatory ground under the Act. As the respondent was fully informed as to the nature of the complaint and responded in detail to the allegations in its submissions and at the hearing, I do not regard the reference to the family status ground as an impediment to my considering the complaint. 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 It is for the complainant in the first instance to establish facts from which it may be presumed that she was discriminated against because of her pregnancy (Section 85A of the Act). I have examined the evidence in relation to the complainant's working hours both prior to and subsequent to the announcement of her pregnancy and found no persuasive evidence that her hours were reduced as a consequence of her making her pregnancy known to hotel management. I similarly examined the evidence in relation to the pattern of early starts and found no persuasive evidence linking the pattern of early starts to the announcement of her pregnancy.
5.3 The parties have referred to a meeting between hotel management and the complainant which culminated in the complainant being asked to get medical certification of fitness to carry out her normal duties before her next shift. As the complainant's performance at work had not been at issue prior to her pregnancy, management's decision to call her to a meeting to discuss her performance during her pregnancy is sufficient to give rise to a presumption of discriminatory treatment and that it is for the respondent to prove the contrary.
5.4 The respondent has referred (4.2 above) to a number of performance/attitudinal issues which arose between March and May 2003 and in particular her recourse to altering rosters without notifying management. I accept on balance that the respondent believed that it had reason to be concerned about the complainant's attitude to her work and her performance and I do not consider it unreasonable that the hotel management should seek to discuss those issues with the complainant in a non-confrontational manner. I would not therefore regard the calling of the complainant to a meeting with management in those circumstances to be in itself discriminatory.
5.5 The remaining issue therefore is the matter of the conduct of the meeting in question and the justification or otherwise for the respondent's request that the complainant obtain medical certification of fitness to carry out her normal duties before resuming her next shift. 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. 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. It is clear in the present case that the respondent's motivation in calling the meeting was to discuss perceived attitudinal and performance shortcomings on the complainant's part and was not part of a risk assessment or motivated by its duty of care to the complainant. The parties disagree as to how the complainant's pregnancy entered the discussion but there is agreement that her pregnancy and her ability to carry out her normal duties became an issue. The case does not turn on this point but I regard the respondent's evidence as the more credible in this regard, particularly that of the restaurant manageress and that it was the complainant who suggested that her pregnancy was affecting her work.
5.6 Where a question arises, whether in the course of a risk assessment undertaken pursuant to the above regulations or otherwise, as to a pregnant employee's fitness to carry out certain duties, it would appear reasonable that an employer may need to seek the professional opinion of a medical practitioner and that in doing so he or she would not be in breach of employment equality legislation. In the present there is no evidence that the respondent's request for a medical certificate arose from a duty of care but was, on the balance of probability, a reactive and punitive step and placed the complainant in the position that she was denied access to work because of her pregnancy until she returned with a medical certificate, even though she had not complained of any illness. In those circumstances I must conclude that the complainant was discriminated against because of her pregnancy and that the treatment complained of amounted to harassment.
6.1 On the basis of the foregoing, I find that the respondent did discriminate against the complainant in terms of Section 6(2) of the Employment Equality Acts, 1998 and 2004 contrary to the provisions of Section 8 and Section 14A of the Act. I order that the respondent compensate the complainant for the distress that she has suffered as a result of the discriminatory treatment. The amount of compensation ordered is €2,000 and being a compensatory payment is exempt from tax.
16 October, 2006
(1) Dekker v Stichting Vormingscentrum Voor Jong Volwassen (VJV Centrum) Plus ECJ C-177/88  ECR I-3941
(2) Council Directive 76/207/EEC