The Equality Tribunal
Employment Equality Acts
(represented by John Curran, B.L. instructed by Landwell Solicitors)
- V -
(represented by Management Support Services(Ireland) Ltd.)
File reference: EE/2005/414
Date of issue: 28 August 2009
Keywords – Employment Equality Acts – Discriminatory Treatment - Harassment – Discriminatory Dismissal - Victimisation - Gender – Family Status - Prima Facie case.
1.1 This dispute concerns a claim by Ms. Lydia Phelan that she was subjected to harassment, discriminatory treatment and dismissal by Fieldmaster Limited on the grounds of gender and family status in terms of Section 6(2) of the Employment Equality Acts, and contrary to section 8 of those Acts and was subjected to victimisation by the respondent within the meaning of Section 74(2) of the Acts.
1.2 The complainant referred a claim of discrimination to the Director of the Equality Tribunal on 22 December 2005 under the Employment Equality Act. On 29 May, 2008, in accordance with her powers under section 75 of the Acts, the Director then delegated the case to the undersigned Conor Stokes - an Equality Officer - for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts on which date my investigation commenced. Submissions were sought from the parties. Substantial submissions were received from both parties in advance of the hearing. As part of the investigation, a hearing was held on 26 November 2008. Substantial additional written submissions were made at the hearing on behalf of the complainant. Responding written submissions were made to the Tribunal on 12 December 2008 which were copied the complainant for information. All written and oral evidence presented to the Tribunal has been taken into consideration when coming to this decision.
2. SUMMARY OF THE COMPLAINANT'S CASE
2.1 The complainant submitted that she was employed by the respondent from 1998 as a Financial Controller working three days a week in the office and a half day working from home. In September 2003, this attendance pattern was renegotiated to one full day and three half days in the office in order to facilitate child care arrangements.
2.2 In early July 2004, the complainant informed the respondent that she was pregnant. The complainant submitted that from that time onwards, she began to encounter significant difficulties in the workplace.
2.3 The complainant submitted that while she was on maternity leave, the respondent sought to discipline her and on the complainant’s return to work, the applicant was treated in a bullying and harassing manner. The complainant submitted that when she sought to address matters in a reasonable way, the respondent was hostile and aggressive.
2.4 The complainant submitted that the respondent sought to erode and diminish her responsibilities. The complainant further submitted that when she returned to work, the respondent sought to unilaterally withdraw the complainant’s contractual entitlement to work on a part-time basis and sought to unilaterally change the terms and conditions or her employment by insisting that she work full time again. The complainant submitted that this treatment was once again based on the grounds of her gender and family status.
2.5 The complainant submitted that due to the foregoing she was compelled to resign and was, therefore, subjected to discriminatory dismissal.
3. SUMMARY OF THE RESPONDENT’S CASE
3.1 The respondent submitted that the complainant was satisfactorily employed from 1998 to September 2003. During that period the complainant was working on a three and a half day basis. In 2003, the complainant approached the company and requested that she be allowed to change her working hours in order to assist with her family responsibilities. The revised proposal meant a reduction of the complainant’s ‘in office’ commitment. The proposal was agreed to. The respondent submitted that despite the change in hours no reduction in pay was applied as it was expected that the same level of work would be carried out in a different way. The respondent also submitted that this new arrangement was a temporary one.
3.2 The respondent submitted that after a period of time it was noticed that the complainant was under pressure to complete the tasks assigned to her. During 2004 a number of issues arose which were problems for the company in terms of the impact on customer service and perception. The respondent had cause to discuss these matters with the respondent. The respondent submitted that these discussions were about operational issues rather than disciplinary issues.
3.3 The respondent submitted that when the complainant was on annual leave for the month of August 2004, a number of serious issues with financial implications for the company came to light. Upon the complainant’s return these issues were raised with the complainant. The respondent submitted that at no time was it aggressive towards the complainant; however given the difficulties encountered, it was only natural that the respondent would be firm in its dealings with the complainant.
3.4 The respondent submitted that during September, October and November 2004, it was forming the view that the temporary arrangement previously agreed to could not continue as the quantity of work was too much for such a truncated work pattern and the quality of the work was not good enough. The respondent submitted that the complainant went out on sick leave during December 2004 but continued to carry on some of her duties from home. The complainant returned briefly from sick leave and was to have undertaken a number of matters including presenting a training plan for her replacement, and to have provided passwords and other data to access accounts.
3.5 The respondent submitted that a meeting was held on 20 December 2009 to make arrangements for the complainant’s maternity leave. The respondent submitted that during that meeting it emerged that the training plan had not been drawn up and the respondent had difficulty getting information from the complainant. The complainant became unwell and ended the meeting. Subsequently the complainant went on sick leave.
3.6 The respondent submitted that it came into the office to try to sort out the complainant’s desk over the Christmas period. The respondent further submitted that during this time, it discovered a lot of documents and other matters that had negative financial implications for the company. The respondent decided to record its comments with a view to discussing them with the complainant on her return to work. The respondent also submitted that what it found confirmed to it that the fears it had regarding the revised working arrangements were justified and that there was a need to address the matter as soon as possible. The complainant did not return to work before her maternity leave began.
3.7 The respondent submitted that it decided to meet with the complainant prior to her return to work. The purpose of the meeting was to give the complainant a copy of all the notes it had compiled identifying matters that concerned it. The respondent submitted that the meeting was quite short as the respondent would not allow the complainant to open the envelope containing the notes despite her desire to do so. The respondent submitted that the owner accompanying the complainant to the door was a gesture of courtesy rather than escorting the complainant off the premises.
3.8 The respondent submitted that when the complainant returned to work in September 2004 it attempted to arrange a meeting in the owner’s office, but the complainant would not agree to this and insisted on holding the meeting in the sales office. The respondent further submitted that during the remainder of the complainant’s time with the respondent, the complainant acted in a bullying fashion and ultimately resigned on 21 September 2004
4. FINDINGS AND CONCLUSIONS OF THE EQUALITY OFFICER
4.1 The issues for decision by me are whether or not the respondent discriminated against, harassed and/or discriminatorily dismissed Ms. Lydia Phelan on grounds of gender and family status, in terms of section 6 of the Employment Equality Acts, 1998-2004 and contrary to section 8 of those Acts. In addition, the issue of victimisation will be dealt with at 4.14 onwards.
4.2 Section 85A of the Acts sets out the burden of proof which applies to claims of discrimination. It requires the complainant to establish, in the first instance, facts upon which she can rely in asserting the she suffered discriminatory treatment. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised.
4.3 In addition to the other evidence given by the complainant at the hearing, the complainant outlined a meeting which took place during her maternity leave where she was confronted with thirty pages of detailed allegations with no advance warning. The meeting was described in advance by the respondent as a meeting to plan the complainant’s return to work. The respondent’s evidence broadly confirms these basic facts. The entire period of pregnancy and maternity leave constitutes a special protected period as outlined in the European Court of Justice decisions in Webb v EMO Air Cargo (UK) Ltd  ECR 1-3567, Brown v Rentokil Ltd ECR 1-04185 and Dekker v Stichting Vormingscentrum  ECR 1-3941. Having regard to the foregoing, I am persuaded that the complainant has established facts upon which she can rely in asserting that she has suffered discriminatory treatment. Accordingly, the onus shifts to the respondent to rebut the inference of discrimination raised.
4.4 The hearing of this matter was very contentious; most of the points raised in the hearing were contested by the other party. Neither party presented an account that was more credible than the other as there were inconsistencies in both versions of events. From the evidence of both parties it is possible to ascertain some underlying facts: The complainant was employed by the respondent from 1998 onwards on a part-time basis; the part-time attendance in the office was varied in 2003; during 2004, a number of problematic issues arose in relation to the financial functions of the business and efforts were made to address those issues; and there was a consequent erosion of the working relationship from 2004 onwards.
4.6 The complainant told the respondent that she was pregnant in July 2004. Following on from a heated management team-building session, the complainant resigned from the management team in July 2004. The complainant was on annual leave during August 2004. The respondent was obliged to sort through the complainant's desk at this time and a number of performance issues came to light. Upon her return to work in September 2004, the complainant agreed to address these issues. Over the next three months, although the complainant worked towards addressing the issues, the respondent formed the view that the complainant would have to return to her original work pattern, as the quantity and quality of the work was not, in its estimation, of a sufficient standard.
4.7 The complainant was out on sick leave during December 2004. She returned to the office briefly towards the end of the month but became ill again necessitating a further period of sick leave. While the complainant was out on sick leave, the respondent attempted to sort out the complainant’s desk once again. The respondent found very disturbing things, items not done with grave financial consequences for the firm. The respondent then compiled a series of notes outlining potential issues and problems with the complainant’s work. The complainant was on sick leave until she began maternity leave on 14 January 2005.
4.8 The complainant subsequently informed the respondent that she would be returning from maternity leave in July 2005. The respondent arranged a meeting on 16 June 2005 (during the complainant’s maternity leave) nominally to discuss the complainants return to work. At the short meeting on 16 June 2005, the respondent presented the complainant with an envelope of about 30 pages of notes detailing what it perceived as the complainant’s failures and shortcomings but instructed the complainant not to open the envelope. The complainant opened the envelope and viewed its contents.
4.9 The complainant considered that contents of the 30 pages of notes to be of such a serious nature that she sought legal advice. Correspondence passed between the parties trying to address the issues raised in the meeting of 16 June 2005 and trying to iron out the issues that had arisen between them. The complainant returned to work on 14 September 2005. There was friction and hostility in the working relationship emanating from both sides. The complainant resigned on 21 September 2005.
4.10 The complainant submitted that she was harassed on the grounds of gender and family status. The Acts define harassment as “unwanted conduct related to any of the discriminatory grounds … which has the purpose of effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person”. I am not satisfied that a claim of harassment, as defined in the Acts, has been established from the evidence before the Tribunal.
4.11 The complainant gave evidence at the hearing that during the meeting which took place during her maternity leave, she was confronted with thirty pages of detailed allegations of what the respondent perceived as the complainant’s failures and shortcomings and called her professional competence into question. She was given no warning of the real nature of the meeting in advance. The meeting was described by the respondent as a meeting to plan the complainant’s return to work. In evidence, the respondent confirmed that it initiated the meeting and advised the complainant that it was a meeting to discuss and plan her return to work following her maternity leave. The respondent also confirmed that it handed the complainant an envelope containing about thirty pages of detailed allegations relating to poor performance and that it did not wish the complainant to open the envelope at the meeting.
4.12 Having considered the manner in which the meeting of 16 June 2005 took place and the broad agreement from both sides as to the course of the meeting, I am satisfied that the purpose of the meeting was not to plan the complainant's return to work as had been advised to her but served to initiate disciplinary proceedings relating to the complainant's competence. The complainant asserted that the presentation of 30 pages of allegations to her in the last days of her maternity leave was an attempt to get her to resign or otherwise not return to her position. Accordingly, it falls to the respondent to rebut this assertion. The respondent stated that it invited the complainant in for a meeting in June 2005 to discuss items that had arisen in December as it didn't want her coming back from maternity leave "unprepared". I do not consider that the response or evidence in general is such that it rebuts the complainant's assertions. Therefore, I find that the meeting was an attempt to get the complainant to resign or otherwise dismiss her.
4.13 In considering this case, I am cognisant of the need for an employer to tackle a perceived lack of performance by an employee using appropriate and fair procedures where necessary. By conducting the 16 June 2005 as outlined above, two weeks before the end of the complainant's maternity leave, I am satisfied that the protection afforded to the complainant during this period has been breached. Accordingly, I am satisfied that this amounts to discriminatory treatment and discriminatory dismissal under the gender ground.
4.14 An additional issue for the Tribunal to consider is whether the complainant was subjected to victimisation by the respondent within the meaning of Section 74(2) of the Acts.
4.15 During the course of the hearing, the complainant stated that she placed an advertisement seeking clients for her new practice in the newspaper and met a client who was keen for her to start. She stated that she informed the client that she had worked for the respondent. Some days later the prospective client indicated that he was not in a position to engage the complainant’s services. It was submitted that this was an instance of victimisation. In addition, the complainant stated that she did not receive a reference from the respondent even though she had sought one. Having considered the evidence and submissions on this matter, I conclude that there is not sufficient evidence to find that victimisation, within the meaning of Section 74(2) of the Acts, has taken place and accordingly this element of the complaint fails.
5.1 Having considered all the written and oral evidence presented to me, I find that the complainant was not subjected to harassment on the basis of her gender or family status at that this element of the complaint fails.
5.2 Having considered all the written and oral evidence presented to me, I find that the respondent has not rebutted the inference of discriminatory treatment two weeks before the end of her maternity leave as raised by the complainant. This element of the complaint therefore succeeds.
5.3 Having considered all the written and oral evidence presented to me, I find that no prima facie case of victimisation as defined in Section 74(2) of the Acts has been established the complainant and this element of the claim therefore fails.
5.4 On the basis of the foregoing I find that the respondent did subject the complainant discriminatory treatment and dismissal on the grounds of gender in terms of section 6(2) of the Employment Equality Acts. In accordance with section 82 of those Acts, I award the complainant €2,000 in compensation for the discriminatory treatment suffered and for the discriminatory dismissal. As this award does not include any element of remuneration, it is not subject to income tax.
28 August 2009