THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS
Decision DEC - E2011 - 124
Ms Deborah Healy
(represented by Ciara O'Duffy, B.L.
instructed by Kevin Tunney & Co., Solicitors)
TrailerCare Holdings Ltd.
File Reference: EE/2008/040
Date of Issue: 23rd June, 2011
Headnotes: Employment Equality Acts, Section 6,8, 14 and 77 - Section 6(2)(a) Gender - Section 6(2)(g), Disability - Section 8(1)(b), conditions of employment - Section 8(6)(c), dismissal - Section 74(2), victimisation - pregnancy-related illness - hospital appointments - redundancy
1.1. This case concerns a complaint by Ms. Deborah Healy (hereinafter referred to as "the complainant") that she was discriminated against by Trailer Care Holdings Ltd. (hereinafter referred to as "the respondent") on the grounds of gender and disability contrary to sections 6(2)(a) and 6(2)(g) of the Employment Equality Acts (hereinafter referred to as "the Acts") in relation to (i) conditions of employment and (ii) dismissal contrary to sections 8(1)(b) and 8(6)(c) of the Acts and that she was victimised by the respondent contrary to Section 74(2) of the Acts.
2.1 The complainant referred a complaint under the Acts to the Director of the Equality Tribunal on 24th January, 2008, alleging that the respondent had discriminated against her on the grounds of gender and disability.
2.2 On the 19th May, 2010, in accordance with her powers under section 75 of the Acts, the Director delegated the case to me, Gary O'Doherty, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions under Part VII of the Acts, on which date my investigation commenced. Written submissions were received from both parties. A hearing of the complaint was held on 7th December, 2010. Further information was sought from both parties after the hearing and final correspondence in this respect was received from the respondent on 22nd February, 2011.
3. Summary of the Complainant's case
3.1. The complainant submitted that she commenced work with the respondent on 9th September, 2006, as a personal assistant/bookkeeper. She said that she had previously been on €30,000 and the respondent told her that it would discuss with her within 3 months about bringing it up from the €28,000 that was initially the pay being offered for the post. The complainant said that she duly received a pay rise a month earlier than expected. She submitted that she was praised at this juncture for her work to date and described how she initially had a great working relationship with the respondent in general and her Manager ("the Manager") in particular.
Allegations with respect to conditions of employment - Gender ground
3.2. The complainant stated that she asked for a meeting with the Manager on 10th April, 2007 to tell her that she was pregnant. She said that the Manager was happy with this announcement and said she hoped she would be able to come back from her maternity leave as they did not want to lose her. She said she told the Manager she had a hospital appointment the following day, and that the Manager had no difficulty with this. However, she submitted that, thereafter, the working relationship with the Manager deteriorated, that the Respondent's attitude became hostile and that she became the focus of "needless" and "unfounded" criticism. She gave examples to illustrate this.
3.3. The complainant submitted that the respondent made it difficult for her to take time off for hospital appointments. She said that, at the end of that month, when her wages were due to be put through, the Manager asked her, with respect to her hospital visit, whether she would like to take that time as holidays or out of her own time. The complainant said she replied that she understood she was entitled to be paid for hospital appointments. She said that the Manager then said she never had anyone working for her before who was pregnant and was not aware of the law relating to maternity so asked could she print off the relevant information and give it to her. The complainant said she agreed to do so.
3.4. The complainant said that, later, the Manager called her into a meeting and said to her that, as a small company, it could not afford to pay her while she attended for her hospital visits so asked if she could arrange her appointment "around the company". The complainant said that she replied that only her hospital visits were arranged during the week. She said the Manager's reply was that if it helped she would ring the hospital to arrange the appointments. The complainant said that, when she objected to this, the Manager told her that she did not like the attitude that she had.
3.5. In relation to her next hospital appointment, on 24th May, 2007, the complainant said that she told the Manager about it in advance by e-mail, on the 7th May, 2007. She said that she was then called into the Manager's office and asked "is this how we do things now, by e-mail?" to which she responded that she was eager to ensure her hospital appointments were above board by informing the respondent of such in writing two weeks in advance. She said that the Manager told her that she had an attitude problem because she had sent an e-mail rather than speaking to her about the matter.
3.6. The complainant said that when she asked the Managing Director of the respondent company ("the Director") about the appointment in question, he said that it was 'ok' for her to go but also told her that they were a small company and could not afford to pay her for those appointments. She also said that, at a later meeting, the Director also raised again the possibility of arranging appointments at a more convenient time for the respondent. The complainant said that she only had three or four hospital visits during the time in question but that each appointment was an issue. She added that, following her meeting with the Manager of 7th May, she always gave two weeks notice of appointments, just not in writing.
3.7. The complainant submitted that she received admonishment from the Manager in relation to morning sickness whereby she was told it was an unacceptable excuse when she rang in sick to work. She stated that the Manager told her it was not acceptable to take "so much time off work" due to morning sickness.
3.8. The complainant said she did not receive a salary review in July 2007 despite that, in her November 2006 meeting with her, she had been told by the Manager that she would be included in these appraisals. She submitted that she was denied even a verbal non-monetary appraisal. The complainant said that, in separate meetings with both the Director and with the Manager she was told that a salary review meeting would take place, but that it never did.
Appointment of Ms A
3.9. The complainant said that a Ms A was hired in July 2007 as Office Manager to replace another member of staff (Ms B). However, she said that it was clear to her that Ms A was being hired to replace her and gave examples to illustrate why she came to this conclusion. She submitted that she was under the impression that she was training in her replacement.
3.10. The complainant submitted that she was left on her own for one week to cover the jobs of two people whilst six months pregnant and suffering with a suspected and later diagnosed named pregnancy-related illness. She added that there was also a failure to provide reasonable accommodation in this context.
Maternity Leave Form
3.11. The complainant said that the Manager told her she would get her maternity leave form (for the Department of Social and Family Affairs) in due course, and the complainant said that she pointed out to the Manager that if she did not get the form in time she would lose out on money. The complainant said that, in their discussions concerning bonuses (see pars. 3.16-3.17 below), the Director told the complainant that they would get this form to her. However, she said they did not give it to her until approximately three days before it was due to be submitted.
Events of 9th August, 2007
3.12. The complainant submitted that, on 9th August, 2007, she approached the Manager with a view to discussing her grievances and told her she felt she was being discriminated against with respect to these grievances. The Manager told her she could not discuss these matters as it was the last day before she was going on holidays and she would deal with them when she returned. The complainant submitted that she was eager to have such an important issue dealt with and therefore formally put her complaint in writing and sent it to the Manager. She added that, in this e-mail, she told the Manager that she had phoned the Equality Authority. She submitted that she received a reply that evening acknowledging the initial e-mail and reiterating that a response to her grievances would have to wait until her return.
3.13. The complainant said she had no problem with the Manager putting off the response. However, she said she did need an assurance that her maternity leave form would be filled out in time. She denied she shouted and roared at the Manager, as alleged by her.
Renovations/Allegations with respect to conditions of employment - Disability Ground
3.14. The complainant outlined why she considered her pregnancy related illness to be a disability under the Acts. She stated that the problems arising from this disability probably first occurred around June. She said that, in or around August, she told the Director she would need crutches towards the end of her pregnancy and he said he was sorry to hear that. She said she never had crutches while she worked with the respondent but she had made him aware that she had a pregnancy-related illness and, consequently, she was discriminated against on the disability ground as the Respondent had failed to provide reasonable accommodation to her in this respect.
3.15. The complainant stated that she was never approached by the respondent with regard to a risk assessment of how renovations it carried out would impact on her and that this was also a failure to provide reasonable accommodation, given her pregnancy-related disability and her morning sickness. She described in detail how these renovations affected her in this respect, noting in particular, that there was a smell of sewage and a "toxic" smell of stripper from the floor. She acknowledged that the painting was carried out at night-time but stated, nonetheless, that there was still a strong smell of paint when she was at work. She said that the Director did open the windows, but the Manager came in and said they had to be closed. She said that she asked to be moved to an alternative workspace but was told that was not possible.
Bonus Payments/Allegation of Victimisation
3.16. In her e-mail to the Manager on 9th August, the complainant had referred to the fact that she had not received a holiday bonus and that this was the matter that she had spoken with the Equality Authority about. She stated that the provision of this bonus to employees was an ongoing practice with the respondent and had been provided to all other employees that year, and she considered that she was being discriminated against with respect to the failure to provide this bonus to her. She said that, four days later, the Director later called her into his office and told her that he would not like her to think he was discriminating so he gave her a cheque for €100 with respect to this bonus. She said she told him that it was the principle of not receiving the bonus that she had a difficulty with as it was discriminatory. She said that he told her "when you get money, take it".
3.17. The complainant said that the Director then announced to all the respondent's employees that the holiday bonus would no longer be given to anyone because of her complaint to the Equality Authority. She said that she learned this from several other employees and submitted that her colleagues told her that she was responsible for the general withdrawal of the bonus. She said that she was victimised by the respondent in this respect as a direct result of the Director's behaviour.
Allegation with respect to Discriminatory Dismissal
Meeting of 7th September, 2007
3.18. The complainant said that, at approximately 17.20 on 7th September, 2007, she was called to a meeting with the Manager and the Director. She said she was due to go on holidays the next day. She said that the Manager and the Director handed her a document on changes in the organisation and a letter making her redundant. She said she asked if she could bring her husband to the meeting and they agreed to this. She said they read out the letter and said they regretted they had to let her go. She said that they told her that, as a gesture of goodwill, they would allow her to leave that day and not have to work out the rest of her notice period but within that period asked her if it "would be ok" if they rang if they had any queries. She said she agreed to this. She said she then cleared her desk and left, submitting that she was shocked, tearful and deeply upset.
Response to rebuttal documents of respondent
3.19. The respondent submitted to the Tribunal a document that set out changes to the operation of the company that gave rise to the redundancy situation which it submitted had arisen in this case. The complainant provided, at length, a response to each of the points raised in this document. In particular, in relation to the Café which was run by the respondent, called Gossip Café, she said that she was still working on the books for Gossip until July 2007 but thereafter she became busy dealing with other aspects of the respondent's business. She said that there was not a vast decrease in workload as a result of the closure of Gossip, rather months of wind-down. She also submitted that all elements of the company, aside from Gossip Café, were making a profit
3.20. Furthermore, the complainant said that, at her initial interview with the Director and the Manager, they had inter alia, discussed Gossip. She said that she was told that things were not picking up in relation to Gossip and that it was not trading well and that it would need her help in relation to menus, suppliers etc. She added that the Director was impressed that she had previously been an Assistant Manager in a catering unit.
Redundancy - criteria, other matters
3.21. The complainant agreed that the Manager had done her job before she started and agreed that it was quite possible that the Manager took on her role when she left. However, she said the Manager was already helping out in the office. The complainant also referred to the Warehouse Manager role, which the respondent stated was carried out by Mr C, who was hired around the same time that the complainant was made redundant. She said that this role had been carried out previously by Ms B and not the Manager.
3.22. When asked whether she had any idea that the company was in difficulty, the complainant said that she knew about the cancellation of certain contracts and/or business but thought other business had been brought in to replace them. She said that there was no decrease in her workload leading up to her redundancy and she was never told of the possibility that someone would be made redundant. She said the redundancy came as a shock. She said that there was no option of short-term working discussed, nor redeployment. She said no appeal option was provided to her and no alternative employment was offered to her. In that respect, she outlined how she considered she could have been retrained or given a different role in the company. She said that there was no mention of part-time or short-term work or lay off for a period of time. She said no-one else was made redundant.
3.23. In summary, the complainant submitted that a female worker cannot be dismissed due to maternity leave and outlined the European and domestic law in that respect. She said that the respondent needs to adduce cogent evidence to discharge the burden in this respect and failed to do so. She said that she was discriminated against directly on the grounds of her pregnancy and because it was not convenient for the respondent at the time for her to be pregnant. She added that her relationship with the respondent deteriorated significantly after she told it that she was pregnant and she was made redundant when she was approximately 30 weeks pregnant. She outlined why she considered that a redundancy cloak had been used. She said that she suffered from post-natal depression and has found it difficult to obtain work but could have returned to work with the respondent after her maternity leave period.
3.24. In short, the complainant submitted that she was discriminated against with respect to her conditions of employment and that her redundancy was contrived squarely on the basis of her pregnancy and was a method of unlawfully denying her of her right to return to employment after her maternity leave.
4. Summary of the Respondent's case
4.1. The respondent is a cold, chill and dry storage company. It agreed that it told the complainant at interview that it would try to get her to €30,000 from the €28,000 it had recruited her at and, in that context, less than two months after she was recruited, it was able to do so. It stated, however, that this pay rise arose from goodwill on its part in the run up to Christmas rather than arising from the complainant's performance.
4.2. The respondent described in considerable detail the good working relationship it said it had with the complainant, in particular her relationship with the Manager, and the generosity and goodwill it said it had displayed to her in assisting her with personal arrangements. The respondent said that it never had a problem with the complainant's performance, but submitted that it was only adequate. It also submitted that criticism of any type in relation to work that may not have been performed satisfactorily did not "rest easy" with her.
Allegations with respect to conditions of employment - Gender ground
4.3. The respondent confirmed that the complainant had informed it on 10th April, 2007 that she was pregnant. It said that on three separate occasions it had someone on maternity leave (it later stated that all three of these pregnancies were the Manager's and had taken place before the relevant current legislation was in place), and it was fairly well versed in the procedures that applied to maternity leave arrangements. Nonetheless, on learning of the complainant's pregnancy, it said that the Manager wanted to be sure of the up-to-date legal position in relation to maternity leave so "we can do the proper thing" and that this was the reason why she asked the complainant to print off the most up-to-date position in this respect. The respondent said that it thought it was reasonable for a small employer to ask that the complainant inform it of this position.
4.4. The respondent considered that it is incumbent on the employee to be cooperative with their employer in relation to hospital visits. In that context, the Manager, who was present at the hearing, said that she did approach the complainant and asked her if it would help if she spoke to someone about arranging appointments that suit both her and the respondent as she just wanted to be able to arrange appointments that facilitated the company. In that respect, she said that she did not feel that the complainant had done so to that point. She said she did not think taking half days was excessive but questioned why it was necessary if there was a hospital "just down the road". However, when this "caused serious offence" to the complainant, who the respondent said thought that it had a "cheek" to try to interfere with her attendance at her hospital appointments, it said it "walked away" from the issue.
4.5. The Manager said that she asked the complainant whether "our relationship deteriorated to the extent that (the complainant) was sending things now by e-mail" and this was said in the context that she was totally surprised that the complainant would do something that was out of the norm by e-mailing her in relation to appointments. The Manager also denied saying that she did not like the complainant's attitude and denied ever telling the complainant that she would have to liaise with the Director with respect to any of her appointments.
4.6. The respondent, in general, denied that it told the complainant that it would require her to take holidays or pay for herself for hospital appointments. It added that the complainant was never stopped from going to any appointment. It submitted that the stubbornness and intransigence on the complainant's part resulted in her adopting a most inconsiderate and unhelpful stance with respect to this issue. It said its issue was that she would leave work for her pre-scheduled appointments without receiving from the complainant the two weeks notice required before her hospital appointments. However, it submitted that it accepted this situation since to strictly enforce its rights in this respect would only have possibly caused upset to the complainant.
4.7. The Manager denied that the complainant was ever "admonished" in relation to morning sickness.
4.8. With respect to the issue of the salary review, the respondent said the complainant in overall terms had been in the company for less than a year at the time the salary reviews took place. It added that such a review was not part of her contract, and there had been no commitment to her to undertake such a review. It said that anyone in her position would not be involved in a salary review. It acknowledged that two employees had been taken on the basis of a reduction in their basic rate of pay and a review of their salary was undertaken, but said this was done in the context that their pay was put up once they were performing satisfactorily.
Appointment of Ms A
4.9. The respondent stated that when Ms B left, they went through a difficult time. It stated that it had hired someone else to replace Ms B and, when that person did not work out, they then hired Ms A. However, it said she only lasted 16 days, she had "no clue" of bookkeeping, and there was no question of her "carrying on". The respondent stated that it was never an issue that Ms A could do the complainant's job and responded to each of the complainant's points in that respect.
4.10. The respondent said, in relation to the complainant's claim that she was required to do the work of two people, that there was no question of the complainant being under the kind of pressure she suggested she was.
Meeting on 9th August, 2007
4.11. In relation to the events of 9th August, 2007, the Manager stated there was a problem with a customer and that she was involved in attempting to resolve this issue. The Director said that, despite being on holidays, though due back the next day, he was also making phone calls in relation to the problem with the customer. The Manager said that, as the complainant's concerns did not seem important enough to drop everything, she asked her if she could discuss them when she returned from her holidays. However, she said that the complainant "shouted and roared" as to why she would not deal with the issues there and then, behaviour which the respondent said was unlike her. When asked whether she considered that the complainant might have shouted and roared because of exasperation, the Manager said no, that she never had a problem with anything before this.
Maternity Leave Form
4.12. The Director said, in relation to the maternity leave form, that the complainant mentioned it a few times and he filled it in on time for her to submit it. He said that he told her to relax and that he will get it done and that there was no question of missing deadlines.
Allegations with respect to conditions of employment - Disability Ground
4.13. The respondent said that it was "awful" to hear allegations that there was sewage involved in relation to the building renovations at issue and vehemently denied that there was ever any issue in this respect. It described in detail why the renovations were necessary and how they were carried out, including the health and safety measures it undertook in that respect, adding that the Food Safety Authority would never have allowed it to operate in the conditions described by the complainant. It denied that the complainant had sought an alternative place of work when the works were ongoing and that she reassured it that she was satisfied with the work that was carried out. It added that it did not wait for the insurance to come through before undertaking the renovations and went ahead with them before that.
4.14. With regard to the carrying out of a risk assessment with respect to the working environment to which the complainant was subject, it said that the decision was made that the complainant would not have to come up and down to the office. The Director said that he did recall the complainant mentioning the issue of crutches but she never requested to be facilitated in any way in that respect.
Bonus Payments/Allegation of Victimisation
4.15. The Director said that his practice is to give small payments, at his discretion, before people went on holidays, as a small way of saying thank you. He said that he did not have detail on who did and did not get these payments but said that the criteria for deciding who would get them was that they would not normally be given out in someone's first year there. He also submitted that one of the bonus payments made in 2007 had not been authorised by him and was contrary to company policy in this respect. When the complainant expressed her grievance with respect to not receiving this bonus, the Director said that he gave the bonus to her as he did not see the merit in the complainant being upset. He agreed that the complainant told him that it was not about the money.
4.16. The Director said it was daunting for an issue relating to an item that is borne out of being generous to be raised into an arena of a formal complaint. He said that, in withdrawing the bonus, he was withdrawing something that gave cause for contention. He said that, because the Equality Authority had become involved (as a result of the complainant's query to it), he was left with no option but to go to everyone and say that the practice of giving ex-gratia payments had to cease. He said that he told them he was withdrawing the payments on the basis that a formal complaint had been made to the Equality Authority but under no circumstances did he mention the complainant's name. When it was suggested to him that it was apparent he was talking about the complainant in relation to the removal of the holiday bonus, the Director said that he could not comment on that presumption.
Allegation with respect to Discriminatory Dismissal
Meeting of 7th September, 2007
4.17. The Director said that the complainant's description of the meeting of 7th September, 2007 was essentially correct. However, he said that he realised it was difficult news to get so there was no question of her being asked to clear her desk. However, he said he did ask if it would be 'ok' with her if they called her if necessary.
Rebuttal documents of respondent
4.18. The respondent presented a document to the Tribunal to explain the reasons behind making the complainant redundant. It said that this document, and accompanying documents, laid out the fundamental background to the serious changes that took place in the operation of the company that made the redundancy necessary. It said that the documents represented not necessarily the level of work that the complainant was doing but the way in which the changes in question affected the company. It said that the net result of the circumstances outlined in these documents was that the respondent ended up with more people employed than it had business for and that three other people had to leave before the end of the year.
4.19. The respondent elaborated in detail upon the documents in question at the hearing. In particular, in relation to Gossip café, it said that an important part of the complainant coming on board related to this business. It said that she was involved in the recording of sales etc. and that when the café shut down in February 2007, there was a big drop in the workload. The respondent said that it had been aware that Gossip was not trading well by 2006 but had let it run for the year to see if they could turn it around. It said that, at the end of 2006, they had to make the decision that they were not going to be able to turn it around. When asked if it was aware that Gossip was closing, and it was overmanned, why it would then hire the complainant, the respondent said that it was not sure if that business would fail and there was no way of knowing they could not turn it around.
Redundancy - criteria, other matters.
4.20. The respondent said that the decision to make the complainant redundant was made one or two days before she was let go. It said that it previously knew some staff would have to be let go, but not which staff. It said that it became aware that there was a surplus of staff in the "middle-ish" of the year when the "loss of business began to bite". It said that, if the complainant had not been let go, then someone else would have to have been let go instead. It submitted that it was obvious to the complainant for months before she was made redundant that the company was undergoing a significant downturn in its business and that it had spoken with her about the matter.
4.21. The respondent said that it let four people go in the year. However, following questioning, it accepted that one of these people, Ms D, was not made redundant, but left of her own accord. It similarly stated that, of the two other people who it had stated were let go, one was let go due to performance issues and one died. It accepted that the complainant was the only person who was let go due to a downturn in business at that time and that nobody else was made redundant until August 2008. However, it said its staff complement had, by the time of the hearing, been reduced to seven (presently) from 15 (at the time the complainant was made redundant) and that there had been short-time salary reductions for two years prior to the hearing.
4.22. The respondent said that it had not given any consideration to employing the complainant in a different role as there was no such role that she could have performed. It described why it considered that to be the case. It said that it did not give any consideration to retraining the complainant and, having looked at the complainant's role in relation to the "bookkeeping side", it found that the Manager could carry out those functions herself. It said she therefore did so and no-one else did any of this work thereafter. It said it did not consider other options for the complainant, including part-time work, which it said was not necessary as the job has been done by the Manager since. It stated that it did not consider leaving the complainant in situ until the end of her maternity leave, saying that it gave her extra notice until she was on maternity leave as it was better for her to know sooner rather than later.
4.23. The respondent said that Mr C, who was hired at the same time the complainant was made redundant, was hired because of his particular skills. It pointed out that Mr C and another Manager, who had been with the respondent for longer, were made redundant later (in September 2009), but Mr C was rehired because of these skills.
4.24. While it acknowledged that Mr C got paid an additional €10,000 more than Ms D, and that he was, inter alia, hired to replace her, it also pointed out that he also carried out other functions. It also acknowledged that two other employees got increases of €4,000 each as part of their salary review in July, 2007 With respect to why the complainant was being made redundant in circumstances where it spent €18,000 extra on salaries, the respondent said it required someone with management experience to take the role that Mr C took and that the Manager than had to go into the complainant's role. It stated that Mr C only took over part of the Manager's role.
4.25. When asked who else it considered for redundancy, the respondent said that the Manager was able to take on the complainant's task and so the only thing it could do was make her redundant. It denied that it was convenient that the complainant was the only employee made redundant given the issues with her pregnancy and/or the difficulties it had with her, including her complaint to the Equality Authority. It confirmed that it decided on the complainant's redundancy only a day or two before making her so, saying that it had "hung on and hung on" in the hope of turning the business around. In short, the respondent denied the complainant's allegation that the redundancy was contrived in the sense that Mr C was poached and was a direct replacement for the Manager who then replaced the complainant.
4.26. In summary, the respondent stated that there was not enough work for both the Manager and the complainant and it could not keep the complainant and let the Manager go when the Manager had been working with it for 18 years. It said that the complainant's redundancy could not be seen to be unfair in that light, and given that the Manager could take on the position the complainant held. It said that it was important to note that, the salary review and bonus issues excepted, it never received any complaint to say that there was a discrimination issue. It stated that it would have had the opportunity to deal with her concerns if it had known about them. It said that it had good relations with the complainant, and outlined why it could be seen to be generous to her in that respect, adding that it had behaved responsibly in relation to the notice period, paying her until 31st October, 2007.
4.27. The respondent confirmed that it had read the submission of the complainant with respect to the relevant EU case law concerning pregnancy and that it understood the Tribunal's explanation that it was a specially protected period. It said that it was very conscious of the company's obligations in this respect but there was nothing in the legislation that forbids an employer to make an employee redundant in the clear-cut circumstances outlined. In short, the respondent said that the complainant's redundancy was borne out of the circumstances outlined in that it just had too many people working for the company, and had nothing to do with her pregnancy. Finally, it said that the complainant was going over their relationship and applying allegations of victimisation and discrimination to things that were "ordinary things at work".
5. Conclusions of the Equality Officer
5.1. In Brown -v- Rentokil Ltd. the European Court of Justice stated that "although pregnancy is not in any way comparable to a pathological condition....the fact remains...that pregnancy is a period during which disorders and complications may arise...Those disorders and complications.....form part of the risks inherent in the condition of pregnancy and are thus a specific feature of that condition." In that context, the pregnancy-related illnesses to which the complainant refers in this case, in so far as they existed during the specially protected period, are properly considered on the gender ground. Therefore, I have considered them in that context (i.e. on the basis of the gender ground only).
5.2. Section 85A of the Acts sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination in relation to him/her. If he/she succeeds in doing so, then, and only then, is it for the respondent to prove the contrary. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of "sufficient significance" before a prima facie case is established and the burden of proof shifts to the respondent. Therefore, in deciding on this complaint, I must first consider whether the complainant has established the existence of a prima facie case. It is only where such a prima facie case has been established that the burden of proving there was no infringement of the principle of equal treatment passes to the respondent.
5.3. Section 6(1) of the Acts provides that discrimination shall be taken to occur where "a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds..." Section 6(2)(a) of the Acts defines the discriminatory ground of gender as follows - "as between any two persons ..... that one is a man and the other is a woman" Section 74(2) of the Acts provides that victimisation occurs where ".... adverse treatment of an employee by his..employer occurs as a reaction to..(a) a complaint of discrimination made by an employee to the employer"
5.4. The issues for me to decide in this case, then, are as follows: Firstly, whether the complainant was discriminated against by the respondent with respect to her conditions of employment; Secondly, whether the complainant was discriminated against by the respondent with respect to her dismissal; Thirdly, whether the respondent victimised the complainant, in terms of section 74(2) of the Acts. In reaching my decision in this case, I have taken into account all of the submissions, both oral and written, made to the Tribunal in the course of its investigation.
Specially Protected Period
5.5. It is well established jurisprudence of the European Court of Justice (as has been held, for example, in the cases of Webb v EMO Air Cargo (UK) Ltd, Brown v Rentokil Ltd and Dekker v Stichting Vormingscentrum) that the entire period of pregnancy and maternity leave constitutes a special protected period and the employment of pregnant women cannot be terminated from the beginning of their pregnancy until the end of their period of maternity leave (the protected period) save in exceptional circumstances unrelated to pregnancy. Furthermore, in the Dekker case, the ECJ held that since pregnancy is a uniquely female condition, that any adverse treatment as a result of or connected to pregnancy, is direct discrimination on the grounds of gender.
5.6. In the present case, the respondent accepts that it was aware that the complainant was pregnant from her first conversation with the Manager about the matter on 10th April, 2007, and including when her employment was terminated. Having regard to the foregoing, I am satisfied that this fact is sufficient to raise an inference of discrimination against the complainant on the grounds of her gender with respect to both her conditions of employment and her dismissal. In such circumstances, the burden of proof shifts and it is for the respondent to prove that the discriminatory treatment on the stated ground did not take place.
Allegations in relation to conditions of employment
5.7. I am satisfied that the respondent's purpose in interfering with the complainant's hospital arrangements by attempting to contacting her doctors was to ensure that she did not take any paid time off work. I am also satisfied that the respondent attempted to take the time in question from the complainant's holiday entitlements and/or her pay and would have done so had the complainant not objected. It may be that the appointments in question could have been arranged at a more suitable time for all concerned. However, the respondent's approach to discussing the matter with the complainant served only to antagonise her and I do not consider that she acted unreasonably in this respect. It is clear that this treatment of the complainant was less favourable treatment arising out of her pregnancy, particularly given that the complainant was legally entitled to attend for the hospital appointments in question.
5.8. I note the respondent's submission that it "accepted" (my emphasis) that the complainant did not notify it of her hospital appointments in the appropriate manner "as to strictly enforce its rights in this regard would have caused her upset". I am satisfied that, with the exception of the first appointment, the complainant did provide the respondent with sufficient notice of her hospital appointments. It is clear that the reason why she did not give notice of all but one appointment in writing was because she had been criticised by the respondent on the one occasion when she did so. In those circumstances, viz. when it is clear that the complainant felt forced by the respondent into providing the notice in question orally rather than in writing, it is not a correct interpretation of the facts, perhaps even a deliberate distortion of the facts, for the respondent to state that it "accepted" the situation.
Maternity Leave Form
5.9. I can see no reason why the respondent would wait until almost the last minute to fill in the complainant's maternity leave form for the Department of Social and Family Affairs. This clearly created considerable stress for her, which was visible to the respondent. However, it is clear that the Director did not intend on giving any credence to her concerns in that respect, no matter how often the complainant raised the issue, or how distressed or frustrated she became by his determination in that respect not to complete the form until it suited him to do so. In fact, I am satisfied that the more she raised the issue, the less inclined he was to comply with her request. In any event, I am satisfied, in all the circumstances of the present case, that this was adverse treatment of the complainant arising out of her pregnancy and was unlawful under the Acts.
5.10. I also note the submissions of the complainant with respect to the issues arising when there were renovations taking place in the building in which she was working. I find her evidence to be more credible in this respect and that she did experience particular difficulties arising from her pregnancy with respect to these renovations. I am further satisfied that when she raised these concerns, which were genuine and serious, they were dismissed out of hand by the respondent.
5.11. I am also satisfied that the complainant did raise the issue that she might require the use of crutches and that she did ask the respondent to put in place measures to alleviate the difficulties that would arise for her when that happened. However, it is clear that the respondent did not intend on taking any action to alleviate the complainant's concerns in this respect: it gave no consideration to the challenges that this might give rise to, both for it and for the complainant, either by way of a risk assessment of these challenges or otherwise. In short, it also dismissed this matter out of hand. It should also be noted that I do not consider the fact that she was dismissed before she had to use crutches to be a coincidence.
5.12. I am satisfied that this was adverse treatment of the complainant arising out of her pregnancy and was unlawful under the Acts, particularly in light of the jurisprudence of the ECJ in this respect, and as already outlined.
Meeting on 9th August, 2007
5.13. With respect to the events of 9th August, 2007, I find, on balance, that it was reasonable for the Manager to delay in answering the complainant's e-mail query when she was due to go on holidays the next day and was in the middle of dealing with a crisis. Therefore, there was no adverse treatment of the complainant by the respondent in that respect.
Other specific allegations with respect to conditions of employment
5.14. I am satisfied that the Manager did raise an objection to the complainant taking sick leave due to morning sickness. I am also satisfied that the complainant was, perhaps deliberately, left to do the work of two people as alleged by her. I would add that I am also satisfied that the complainant would have been provided with a holiday bonus if she had not been pregnant (This is also a matter relating to victimisation and is dealt with in that context at pars. 5.16 to 5.19 below). I am satisfied that these were further incidents of adverse treatment of the complainant arising out of her pregnancy and were unlawful under the Acts, particularly in light of the jurisprudence of the ECJ in this respect, and as already outlined.
Printing of material
5.15. Finally, with respect to conditions of employment, I am not aware of anything in the relevant legislation that requires a pregnant employee to inform an employer of her pregnancy-related and maternity rights. Indeed, the onus is clearly on the employer to be aware of the rights in question in affording them to the employee and the respondent was not entitled to require the complainant to inform it of those rights. In the overall context of the present complaint, this was a minor issue, but it is indicative of the approach that the respondent then took to the remainder of the issues that arose in the present case.
Bonus Payments/Allegation of Victimisation
5.16. The complainant also submits that, by withdrawing the holiday bonus from all employees because she had spoken to the Equality Authority about the matter, the respondent victimised her, particularly in the context that it caused serious resentment of her by her fellow employees. The respondent submits that the bonus was discretionary and a token of appreciation and that, by raising it as an issue, the complainant was destroying the spirit in which it was being given. For that reason, the Director said he felt he had no choice but to terminate the practice as it had become a source of discontent. In any event, he submitted that he never told the employees in question who had made the relevant complaint.
5.17. In all the circumstances of the present case, I am satisfied that when the Director told the respondent's employees that their holiday bonus was being withdrawn because someone had made a complaint to the Equality Authority, they knew that he was referring to the complainant, even if he did not name her. It should be added that, even if they had not known this, they would have soon, and quite easily, found out who he meant, and that the Director would have been aware of this fact. In that context, whether the Director named the complainant or not is irrelevant.
5.18. I am satisfied that the consequence for the complainant of the Director's actions in this respect was that she was approached by a number of angry employees who blamed her for losing out on money which they would have received had she not made her complaint, and that she had to justify herself to them. There can be no doubt that this tainted her workplace environment and caused her considerable stress. I am satisfied that the Director intended this outcome. I am satisfied that he had at least two purposes in doing so. Firstly, he wished to punish the complainant for making her complaint to the Equality Authority by turning her colleagues against her. Secondly, he wished to threaten and intimidate her and anyone else who might consider making a complaint, with a view to preventing any future complaints. He acted deliberately and provocatively in behaving in this manner.
5.19. It is clear that this act was adverse treatment of the complainant arising from her raising the matter with the Equality Authority, and thereafter with the respondent, and that it falls within the meaning of victimisation under the Acts as set out in s.74(2). Therefore, the complainant has established a prima facie case in this respect, which the respondent has failed to rebut.
Allegation with respect to Discriminatory Dismissal
Meeting of 7th September, 2007
5.20. The complainant's account of the meeting of 7th September, 2007, is generally accepted by the respondent, but it states that it did not ask her to clear her desk. However, I consider the complainant's account of this meeting to be more credible and that the complainant was asked to vacate the premises immediately but was asked if she would mind making herself available to be contacted should the need arise, which she agreed to.
Rebuttal documents of respondent (financial circumstances)
5.21. I note the document presented by the respondent in which it outlined the challenging financial circumstances of the company which, it submitted, gave rise to the necessity to make the complainant redundant. I note the elaboration upon this document it gave at the hearing. In that respect, I take the respondent's point that this document refers to the general circumstances of the company that led it to need to let someone go, rather than particular reasons why the complainant had to be let go, and so did not necessarily relate to the complainant's post. I also note the financial information provided by the respondent at my request after the hearing. I also note the complainant's counter arguments.
5.22. It is not my role to make a judgement on the performance of a particular respondent's business. However, this much must be said, particularly given that it is for the respondent to rebut the prima facie case established in this respect: that, as a whole, the totality of the evidence does not support the respondent's assertion that its business was in such difficulty that it had to make anyone redundant. Certainly, contracts were cancelled, but other contracts were implemented to replace them. Indeed, it would appear, as submitted by the complainant, that all elements of the company, aside from Gossip Café, were making a profit. Furthermore, and in any event, having considered all the relevant evidence, I am satisfied that the workload of the organisation as a whole at the time the complainant was allegedly made redundant was not significantly different than at the time she was hired.
5.23. There was one particular part of the respondent's business that clearly was in difficulty, and that was Gossip Café. However, in that respect, it is also clear that the complainant was hired to assist with that business when it was already in serious difficulty and, when it closed, there was no mention made to her that her job might be made redundant as a result. Indeed, it is clear that, if anything, her workload increased subsequent to this closure. I note, again, the respondent's argument that the important point is how this impacted on the company as a whole rather than specifically on the complainant. However, I cannot see how, if there was a real redundancy situation, the demise of the one part of the company that was in trouble would not impact directly upon the person who had been hired to focus on that part and who was the person ultimately made redundant. That proposition is simply not credible.
5.24. In short, then, the facts presented, as a whole, do not support the respondent's submission that the financial difficulties it faced, even in relation to Gossip, gave rise to a redundancy situation. Nor does any single fact or any particular difficulty outlined by the respondent support its submission that they were factors giving rise to a genuine redundancy.
Rebuttal documents of respondent (staff numbers)
5.25. The respondent submitted that the documentation it provided to the Tribunal relating to its staff complement during the period under investigation shows that this complement was reduced by two, including the complainant, between October and November, 2007. It further submitted that this reduction is accounted for by the resignation of Ms D who was not replaced and that this is further evidence of the need for the respondent to reduce staff numbers. It is not clear, in the first instance, whether Ms D was not replaced, as I note that at one point the respondent stated that she was replaced by Mr C. However, even if it is accepted that she was not replaced, her departure from the company took place after that of the complainant. Furthermore, there is no evidence that, prior to her departure, the respondent intended on making Ms D or anyone, other than the complainant, redundant.
5.26. I note that Ms D resigned on 1st October, 2007, while the complainant was technically still working for the respondent. I also note that the staff complement in March 2007 was the same as after the complainant was allegedly made redundant; that there was a considerable number of staff members hired and fired over the spring/summer period; that at times there were two people doing one job as one left and one was trained; that there were many changes in staff roles in this period. In that context, I am satisfied that reduction of the respondent's staff complement at the time the complainant was allegedly made redundant was the result of an overlap in staff coming and going and that the respondent's real staff numbers did not reduce as a result of the complainant's departure.
5.27. It is also suggested that the fact that Ms D was not replaced stands alone as sufficient evidence that the respondent needed to reduce staff numbers, and/or that her departure saved the need for an additional alleged redundancy. However, in all the circumstances of the present case, I think it at least equally likely that the respondent simply redistributed her work among existing employees and so may not have had to recruit someone to replace her. Either way, I am satisfied that the fact that Ms D resigned shortly after the complainant was allegedly made redundant is mere coincidence. The resultant saving of her salary, though welcome, was unplanned and had nothing to do with any need to make anyone redundant. It is certainly not sufficient evidence for the respondent to rebut the prima facie case established by the complainant in that respect.
Redundancy - criteria, other matters.
5.28. Ultimately, the respondent's rebuttal in relation to the dismissal depends upon the extent to which I accept its submission that, because the Manager had less work as a result of Mr C taking over part of her role, she had to take over the complainant's job and the complainant had to be made redundant. Put another way, it was the hiring of Mr C that led to the change in the working circumstances of the Manager that caused the complainant to be replaced by her. In that light, it is crucial to consider the circumstances surrounding the hiring of Mr C.
5.29. I note that Mr C was hired around the same time that the complainant was allegedly made redundant and that he was paid €12,000 more than the complainant was. Even taking into account the reduction in the respondent's salary costs associated with the dismissal of the complainant, those costs were increased rather than decreased immediately after Mr C was hired. In that context, the respondent's submission that the complainant's alleged redundancy was necessitated by financial constraints and overstaffing of the company does not stand up to scrutiny. I also note that the respondent spent a further €8,000 on wages at the same approximate time. That this additional amount was related to pay increases that the individuals concerned had been promised if their performance was satisfactory does not lend any additional support to its submission that it had to make the complainant "redundant".
5.30. I would add that, in any event, I do not accept the respondent's submission that the extent of the work that Mr C took over from the Manager necessitated her replacement of the complainant. I am satisfied that the extent of this workload has been exaggerated by the respondent in order to, as the complainant submitted, create a cloak of redundancy in order to justify its dismissal of the complainant. I am satisfied that there was ample work remaining for both the Manager and the complainant to be facilitated in remaining with the company.
5.31. I would add that, even if that was not the case, I am satisfied that the complainant could easily have been facilitated in remaining with the respondent, whether through retraining or otherwise. Furthermore, even if the respondent's submission was to be accepted in its entirety, then Mr C would have effectively replaced the Manager and the Manager would have effectively replaced the complainant. In such a scenario, the complainant was simply dismissed and replaced by someone else (i.e. Mr C). That is not a redundancy situation.
5.32. Finally, I note that there was no meeting with the complainant to discuss her redundancy; it was presented to her as a fait accompli. She did not receive protective notice and I am satisfied that she never received any other form of advance notice that she might be made redundant. There was no attempt made to consider alternative options, such as part-time work, redeployment or retraining. There was no consideration given to making anyone else redundant, to laying the complainant off temporarily or to postponing her alleged redundancy until after she returned from maternity leave (for example, in the hope that the alleged financial predicament might be resolved in the meantime). Given that the respondent paid her until the point at which she would have been due to go on maternity leave, the latter option would have been entirely cost neutral to the respondent.
5.33. In those circumstances, and in all the other circumstances of the present case, I am satisfied that the complainant's alleged redundancy was not a genuine redundancy.
5.34. I might add that I am also satisfied that, if the complainant had not been pregnant, she would have at least been facilitated with a progress review meeting in June, 2007, even if she would not necessarily have received a salary increase. In particular in this respect, I note that, if the respondent's submissions in this respect were to be accepted, the complainant would not have been due a salary review until June, 2009, some 20 months after her salary increase in October, 2007. I also accept the complainant's submission that the respondent had sought to replace her earlier by hiring Ms. A. As she was hired a short time after the salary reviews took place, this leads me to conclude that, in fact, a decision had already been taken at that stage to dismiss the complainant. However, it should be noted that nothing turns on this conclusion.
5.35. The respondent submitted that the complainant is looking back on her relationship with it through the prism of her later dismissal and that she was seeing everything that happened in that light. In that context, it pointed to their good working relationship and, in particular, to the generosity it showed to her in assisting her with personal business. It is not disputed that, prior to the complainant becoming pregnant, there was a good working relationship. However, it is clear that there was a dramatic deterioration in that relationship and that this coincided with her pregnancy. This fact speaks volumes about this case.
5.36. The respondent, in general, did not have time for the complainant once she became pregnant because she did not toe its line in the way in which it wished to deal with the issues arising from that pregnancy. The generosity it displayed to her before she became pregnant disappeared when she did not do so. This was evident in the dismissive and inflexible approach it took to every issue which the complainant raised, even where her legitimate concerns and requests caused it the most minor inconvenience. In particular, it displayed a quite blatant disregard for its legal obligations with respect to the complainant's hospital appointments. While the complainant could have been more accommodating at times, its approach to her did not lend itself to encouraging her to do so, and she was under no obligation to facilitate the respondent in this respect.
5.37. Ultimately, this treatment of the complainant by the respondent concluded with her dismissal. In that respect, its submission that it was a company in extreme financial difficulty and with more people employed than it had business for to the extent that it was left with no alternative but to let someone go does not stand up to scrutiny. It is clear that, in the time the complainant worked for the respondent, she was the only person who left, or was dismissed, for reasons that were even alleged to be related to the company's financial state. Yet nobody else was made redundant for at least another year and the respondent allocated €20,000 in additional salaries in the time just before the complainant was allegedly made redundant. It is also accepted that there was no issue with the complainant's performance in that there was no question that she was not able to perform her duties.
5.38. In short, there was no redundancy, despite the respondent's attempt to obfuscate this fact by using the opportunity of the recruitment of Mr C to create what it thought it could pass off as a legitimate redundancy situation. In that light, and in all the other circumstances of the present case, I am satisfied that the complainant's submission that the redundancy was contrived on the basis of her pregnancy and was a method of unlawfully denying her of her right to return to employment after her maternity leave is correct. I would add that I am satisfied that the purpose of the respondent's apparent gesture in allowing the complainant not have to work out her notice period was to remove from its premises, as quickly as possible, someone it saw as a troublesome employee. It certainly had no altruistic purpose.
5.39. In all the circumstances of the present complaint, then, the complainant would have established a prima facie case of dismissal and conditions of employment on the grounds of gender irrespective of the law that applied to the specially protected period as already outlined. In any event, a prima facie case has already been established by the complainant with respect to the specially protected period. Either way, the respondent has failed to rebut this prima facie case.
5.40. It should be noted that the award to be made with respect to discrimination includes an element relating to conditions of employment and to the distress caused to the complainant by the respondent's unlawful treatment of her in this respect. It also includes an element relating to the discriminatory dismissal and the distress caused to the complainant by that dismissal. I also note that it is well settled that an award of compensation for the effects of discrimination must be proportionate, effective and dissuasive.
5.41. The Acts also require that I make a separate award for the victimisation and have done so. I have again taken into account the distress caused to her as a consequence of her treatment by the respondent in that respect and that an award in this respect must be proportionate, effective and dissuasive. I have also taken into account that this treatment was deliberate and provocative and designed to intimidate and/or threaten her, and that its purpose was to prevent her taking any further action with respect to her complaint that she was being discriminated against by the respondent because she was pregnant.
5.42. Finally, particularly with respect to the award to be made in this case, I note the timing of the complainant's dismissal, arising just eight weeks before she was due to give birth, caused significant additional distress to her. In the context that she was heavily pregnant, I also note the manner of her being informed of her dismissal: summarily; in the last hour of the day before she was due to go on holidays; without any mention to her, at any point previously, that her job might be at risk; without any discussion about alternatives; and without any genuine effort of any kind being made to cushion the blow.
6.1. Having completed my investigation of this complaint, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts:
6.2. I find that the respondent discriminated against the complainant on the gender ground with respect to her dismissal by it, pursuant to section 6(2) of the Acts and contrary to Section 8(6)(c) of the Acts;
6.3. I find that the respondent discriminated against the complainant on the gender ground with respect to her conditions of employment, pursuant to section 6(2) of the Acts and contrary to Section 8(1)(b) of the Acts;
6.4. I find that the respondent victimised the complainant in terms of Section 74(2) of the Acts;
6.5. In accordance with Section 82 of the Acts, I order the respondent to pay to the complainant the sum of €40,000 in respect of the discrimination. This award is not in the nature of pay and is, therefore, not subject to tax.
6.6. Furthermore, pursuant to s. 82(5)(b) of the Acts, I order the respondent to pay the complainant interest at the Courts Act rate in respect of the amount referred to at paragraph 6.5 above in respect of the period beginning on 24th January, 2008 (being the date of the reference of the claim) and ending on the date of payment.
6.7. Additionally, pursuant to Section 79(1A) and in accordance with Section 82 of the Acts, I order the respondent to pay to the complainant the sum of €10,000 in respect of the victimisation. This award is not in the nature of pay and is, therefore, not subject to tax.
6.8. Finally, in accordance with s.82(1)(e) of the Acts I also make the following order: that the respondent engage an appropriate person or organisation expert in the area of Employment Equality law to carry out a programme of training with respect to the Employment Equality Acts. Every person employed by the respondent whose work includes a management and/or supervisory role, and including the Manager and the Director, must have completed this training programme within twelve months of the date of this decision.
23rd June, 2011