The Equality Tribunal
Employment Equality Acts
(Represented by a Firm of Solicitors)
- V -
A Publishing Company
(Represented by a Firm of Solicitors)
File reference: EE/2007/532
Date of issue: 30 August 2010
Keywords - Employment Equality Acts - Harassment - Equal Pay - Gender - Family Status - Age - Prima facie case
1.1 This dispute concerns a claim that the complainant was subjected to harassment by the respondent on the grounds of age, gender and family status in terms of section 6(2) of the Employment Equality Acts (hereafter referred to as 'the Acts'), and contrary to section 14A of those Acts. The complainant also lodged a claim for equal remuneration under Section 19 of the Acts.
1.2 The complainant referred a claim of discrimination to the Director of the Equality Tribunal on 11 October 2007 under the Acts. On 28 May 2009, in accordance with her powers under section 75 of the Acts, the Director delegated the case to 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 and received from the parties. Initial enquiries took place in the presence of both parties on 26 February 2010. As part of my investigation, I proceeded to hearing on 16 June 2010 (as required by Section 79(1)). All written and oral evidence presented to the Tribunal has been taken into consideration when coming to this decision.
2. SCOPE OF THE INVESTIGATION
2.1 In the course of the investigation prior to the hearing, the complainant withdrew the element of the complaint that related to the family status ground.
2.2 In the course of the hearing on 16 June 2010, the complainant withdrew the claim for equal remuneration.
2.3 In the course of the hearing on 16 June 2010, the complainant's representative, in response to the Tribunal's specific enquiries, confirmed on a number of occasions that the complainant was not pursuing a claim in relation to discriminatory treatment or discriminatory dismissal under Section 8 and that the complaint was limited to a consideration of harassment as set down in Section 14A of the Acts.
2.4 Accordingly, the complaint being investigated is limited to the consideration of the issue of harassment on the gender and age grounds.
3. SUMMARY OF THE COMPLAINANT'S SUBMISSIONS
3.1 The complainant submitted that she began employment with the respondent's directors in April 2003 and has been employed by them ever since. The respondent company came into being in May 2007 and the complainant submitted that the harassment she was subjected to began in July 2007 after she told the respondent that she was pregnant. In support of her claim, the complainant submitted that although the respondents directors expressed their delight at her pregnancy, when she informed them in early July 2007, her workload increased thereafter, and the directors began checking up on her on a daily basis. The complainant further submitted that her named male colleague was not treated in this manner and was constantly in the director's office chatting and that he was treated in a more favourable manner than she was.
3.2 The complainant submitted that she was subjected to snide remarks about her pregnancy and that one of the respondent directors made remarks to her about taking her annual leave in August 2007 along the lines that as she was only working for half the month, they should only pay her half a months wages.
3.3 The complainant submitted that at the beginning of September 2007, the respondent directors called her in to say to her that they had decided to only pay her up to 20% of the advertising income she generated rather than her agreed salary. The complainant submitted that in response to her protests she was told that "this was fair and that this was the way that it was".
3.4 The complainant submitted that the respondent directors told her to go home and think about it over night and come back with her decision in the morning. Following this she was certified off sick until further notice.
4. SUMMARY OF THE RESPONDENT'S SUBMISSIONS
4.1 The respondent submitted that the complainant alleges that the first act of discrimination occurred at the beginning of July 2007. The respondent further submitted that it is unable to see how any of the allegations made against it constitute discrimination on the age ground and that it appears that the sole ground is that of gender and, more specifically, pregnancy.
4.2 The respondent submitted that the complainant has misconstrued actions taken by it in the normal course of its business, and in furtherance of its commercial objectives as acts of discrimination against her on the grounds of gender.
4.3 The respondent submitted that the complainant did not indicate to it that she was having difficulty in raising revenue from sales of advertising and that the sales figures were not on track for a number of months. The respondent submitted that it accepts that it required to the complainant to achieve advertising sales of not less than €20,000 in September 2007 in order to make inroads on the amount of the shortfall which had occurred in 2007. The respondent submitted that it also accepts that it told the complainant that her remuneration for September 2007 would not exceed 20 % of the amount of her advertising sales for that month (the figure of 20% equating to the industry standard then prevailing).
5. FINDINGS AND CONCLUSIONS OF THE EQUALITY OFFICER
5.1 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 from which discrimination may be inferred. 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.
5.2 No evidence was presented to the Tribunal to support a claim of age-related discrimination other than to state that the complainant and a named comparator were of a different age. I do not consider that this amounts to the establishment of facts from which discrimination may be inferred. Accordingly no prima facie case of age discrimination has been established and this strand of her complaint fails.
5.3 The respondent's representative submitted that as pregnancy is a condition which relates to a woman and not to a man, any less favourable treatment that may have occurred cannot amount to discrimination on the gender ground. The respondent stated that "furthermore, the mere fact that she was pregnant and that the company took a decision based on commercial reasons is not related to the complainant's gender".
5.4 For the avoidance of doubt, the legal position may be summarised as follows: 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. Furthermore, it is settled law that where less favourable treatment takes place during that special protected period, it raises a prima facie case of discrimination on the gender ground. Therefore, the respondent is incorrect in the submission referred to in the first sentence of 5.3 above.
5.5 During the hearing, the complainant's representative confirmed that the equal remuneration aspect of the case had been withdrawn. The Tribunal posed direct questions to the complainant's representative as to whether any issue arising from Section 8 of the Acts, relating to discriminatory treatment was being pursued and was informed that no issue was being pursued. The Tribunal posed direct questions to the complainant's representative as to whether any issue of dismissal was being pursued and was informed that it was not. Therefore the issue for decision by me is whether or not the respondent subjected the complainant to harassment on grounds of gender and age, in terms of section 6 of the Acts and contrary to section 14A of the Acts.
5.6 Section 14A (7) (a) of the Acts, inter alia, defines harassment as
"any form of unwanted conduct related to any of the discriminatory grounds ... being conduct which in either case has the purpose or effect of violating a person's dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person"
(b) Without prejudice to the generality of paragraph (a), such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material.
5.7 The complainant stated that this harassment took the form of snide remarks being made to her about her pregnancy and the unilateral alteration of her conditions of service. During the course of the hearing, both the complainant and the respondent were questioned as to these allegations and I have considered both sets of evidence.
5.8 The complainant was vague as to the details of the remarks made to her - she was unable to indicate what was said, who said it and when any remarks were made. On the other hand, one of the witnesses for the respondent gave a very compelling account of why no remarks were made or would have been tolerated. This very personal account included references to difficulties in relation to conception, IVF treatment and subsequent adoption processes, and also related to the advice and encouragement given to the complainant during her efforts to conceive. The other employees would have been aware of the respondents empathetic attitude to the complainant's situation. This account was not contested by the complainant. I found the evidence so compelling and convincing as to leave me in no doubt that no snide remarks were made about the complainants pregnancy.
5.9 The office lay out was such that the two directors shared an office which was separated from the general office by means of a glass partition. The respondent stated that there may have been a difference in the treatment in relation to the named male colleague as both directors were familiar with his workload, were involved in his initial mentoring process and were working on the same publications as him. On the other hand, the complainant was experienced in dealing with her workload, was working on her own publication and was the only employee who had experience in her field. The respondent stated that she was, therefore, left to her own devices. In addition, the respondent stated that any difference in treatment given to her colleague predated the beginning of July and therefore predated when the complainant says that the alleged harassment started. The complainant did not contest this evidence. For the avoidance of doubt, I do not consider that the mentoring role, as outlined to the Tribunal, amounts to, or contributed to, harassment as defined under the Acts.
5.10 The alteration of the complainants conditions of service was accepted by the respondent in their written submissions to the Tribunal prior to the hearing of this matter. Therefore, the issue for me to consider is whether altering the complainants conditions of service in isolation can, and in this case does, amount to harassment.
5.11 The issue of conditions of service is expressly dealt with in Section 8(1)(b) of the Acts. I am of the opinion that where the legislature has expressed a particular action in one section of the legislation, it is not appropriate to imply such an action, in isolation, into another section of the same legislation. If the legislature had wished to detail a change in conditions of service as amounting to harassment, it was open to it to do so. As the remainder of the complainant's case has either been withdrawn or has not been established to my satisfaction, I cannot consider that varying, or the threat to vary, a persons conditions of service, on it's own, has the purpose or effect of violating a persons dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment for a person.
5.12 In this case I consider that this matter should have been pursued under Section 8 of the Acts. In circumstances where a complainant, who was legally represented, has expressly declined to do so, I cannot investigate the matter further. Accordingly, this case fails.
6.1 The complainant did not pursue a complaint of discriminatory treatment or discriminatory dismissal. Therefore I am not in a position to investigate these matters.
6.2 Having considered all the written and oral evidence presented to me, I find that a prima facie case of harassment on the age ground has not been established and this element of the complaint fails.
6.3 Having considered all the written and oral evidence presented to me, I find that a prima facie case of harassment on the gender ground has not been established and this element of the complaint also fails.
30 August 2010