EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E2012-084
(Represented by Conor Bowman B.L. instructed by
Enda P. Moran B.C.L. Solicitor)
(Represented by O'Mara Geraghty McCourt)
File reference: EE/2009/772
Date of issue: 25 June 2012
HEADNOTES: Employment Equality Acts Sections 6 & 8 - Family Status - Conditions of Employment - Discriminatory Dismissal - jurisdiction under section 101
1.1. This dispute concerns a claim by Ms Irina Uscatu that she was discriminated against by Lackabeg Limited on the grounds of family status contrary to section 6 of the Employment Equality Acts in terms of conditions of employment and discriminatory dismissal in accordance with section 8 of the Acts.
1.2. The complainant referred her claim to the Director of the Equality Tribunal on 19 October 2009 under the Acts. On 10 February 2012, in accordance with his powers under section 75 of the Acts, the Director delegated the case to me, Hugh Lonsdale, 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 received from both sides. In accordance with Section 79(1) of the Acts and as part of my investigation I proceeded to a hearing on 27 April 2012 and final information was received on 15 May 2012.
2. PRELIMINARY ISSUE
2.1. The complainant has made claims in relation to conditions of employment and discriminatory dismissal. The respondent submits that the complainant took a claim under the Unfair Dismissals Acts, 1977 - 2001 regarding her dismissal from the respondent and that section 101(4) of the Employment Equality Acts precludes her from taking a claim under the Employment Equality Acts.
2.2. Section 101(4)(c) of the Employment Equality Acts states: "an employee who has been dismissed shall not be entitled to seek redress under this Part in respect of the dismissal if .... the Employment Appeals Tribunal has begun a hearing into the matter of the dismissal". In this case it was accepted that the Employment Appeals Tribunal did begin a hearing into the complainant's dismissal. I therefore have no jurisdiction in relation to the claim of discriminatory dismissal and can consider no issues in relation to the complainant's dismissal. I do, however, have jurisdiction to investigate the claim in relation to conditions of employment.
3. COMPLAINANT'S SUBMISSION
3.1. The complainant started work for the respondent and related companies in October 2002. She submits that she became pregnant in November 2006 and had a miscarriage in early 2007 in Latvia. She did not inform the respondent but was on sick leave from 21 January to 1 February 2007. In September 2007 she became pregnant again. She was working in the Arc Bar and informed the General Manager (Mr A) after 12 weeks.
3.2. The complainant submits that as part of her work she was obliged to carry heavy trays of dishes and climb stairs and she was afraid of the effect of this, particularly because of her previous miscarriage. She mentioned her concerns to Mr A and she started working on a morning shift where the work was predominantly downstairs and the trays to be carried were much lighter. This was fine until April 2008 when the breakfast began to be served upstairs. She was instructed to work upstairs, even though, because of her advanced stage of pregnancy she had difficulty carrying the heavy trays upstairs. She submits that she complained but her complaints were ignored. She stayed working upstairs until she went on maternity leave on 5 May 2008.
3.3. The complainant submits that in March 2009 she returned from maternity leave. She asked for flexible hours, particularly to work mornings as she required flexibility in order to breastfeed her son. It was agreed with Mr A that she would work from 9 am to noon. She submits this never worked out and after one month her rostered hours became very mixed, she was asked to work from 9am - 2pm , 9am -3pm, 12 noon - 5pm or noon - 3pm, and she did not know why this was done.
3.4. The complainant submits she asked to be let go during certain hours to breastfeed her child which management reluctantly agreed to. However, she would be required to return immediately to work and was required to breastfeed during her break only. Also she was asked to stay late on a number of occasions without any formal notice. She submits that if she did not agree she would experience "difficulties" with management. When she said she wanted to return to working at night this was refused.
3.5. In April or May 2009 the complainant recalls an incident when Mr A asked how old her baby was and if she was still breastfeeding. She submits that she was upset when he accused her of lying when she said she was still breastfeeding. The complainant submits she consequently got a letter from her doctor to say that she was still breastfeeding. The letter was dated 27 July 2009 but she never got the opportunity to hand it in as she was dismissed.
3.6. The complainant submits that she was discriminated against during her pregnancy and after her return to work on the grounds of her family status.
4. RESPONDENT'S SUBMISSION
4.1. The respondent confirmed that the complainant started work for them in October 2007. The complainant informed Mr A she was pregnant in mid January 2008. The respondent was unaware of a previous miscarriage.
4.2. The respondent confirms that the complainant asked Mr A for morning shifts and Mr A persuaded another member of staff to move shifts around in order to accommodate her. This meant she would be carrying less trays and less trips up and down stairs. The complainant never complained about working the breakfast shift and continued working this shift until she went on maternity leave. The respondent submitted staff rosters which shows that from 6 January 2008 until she went on maternity leave she started at or around 9am and finished at 2pm or 3pm on every shift she worked; apart from Sunday 27 January 2008 when she worked from 2pm to finish.
4.3. The respondent submits that the complainant returned from maternity leave on 16 March 2009 and for the first week worked a 9am - 3pm shift. Thereafter, at her request, the complainant worked from 9am to noon until 12 June 2009. The respondent submitted copies of staff rosters to verify this.
4.4. The respondent submits that the complainant made no requests to be allowed to go home to feed her child but if asked she would have been facilitated.
4.5. The respondent was unaware of any "difficulties" the complainant had and contend she was aware of their grievance procedure in the Staff Handbook and their Equality Policy. The complainant lodged no complaints. Furthermore, in a performance appraisal on 3 July 2009 the complainant was asked if she had any 'constraints, obstacles or difficulties encountered in your job' and all she said was 'people telling me different things'.
4.6. In relation to the incident in April or May 2009 the respondent notes that the complainant refers to Mr A in her written submission but refers to Mr B in the initial EE1 claim form. They submit that neither had this conversation with the complainant. The only thing they were aware of was the complainant having a chat with two female work colleagues about babies.
4.7. The respondent submits that on 3 July 2009 they had a performance appraisal meeting with the complainant. No issues were raised by the complainant but they saw areas for improvement and agreed to meet again in two weeks time. At the follow up meeting on 26 July 2009 Mr A and Mr B asked the complainant if something was going on that makes it difficult for her to do her job. The complainant said there was not and when they asked 'where do we go from here' the complainant said she would leave and asked how mush money she would get. The respondent submits the complainant left of her own accord.
5. FINDINGS & CONCLUSION
5.1. I have to decide if the complainant was discriminated against in relation to conditions of employment on the grounds of family status. In reaching my decision I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence presented at the hearing. Section 85A (1) of the Employment Equality Acts, 1998 - 2007 states: "Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary." This means that the complainant must establish primary facts upon which the claim of discrimination is grounded and then the burden of proof passes to the respondent.
5.2. This claim is made up of two periods; the first when the complainant was pregnant and the second when she came back to work after maternity leave. In the first period I accept the evidence of the respondent that they accommodated the complainant's request in January 2008 for lighter duties by moving her to the breakfast shift. At the hearing the complainant raised no issue with her working arrangements until April 2008 when the respondent moved the breakfast service upstairs and she contends this was unsuitable for her in the advanced stages of pregnancy. The respondent says it was a managerial decision to move the breakfast service upstairs where it could be seen by people driving by, in an effort by them to increase the number of customers. They contend that the complainant was only serving in the region of 10 - 12 customers and she had to carry the trays up about 10 steps, furthermore the complainant was only serving on her own for one hour.
5.3. They also contend the complainant did not complain about any difficulties she was having because of the stairs from 1 April to 5 May 2008. The complainant contends she made no complaint because she was on a work permit. However, I have to be cognisant of the fact that she did go to her manager and ask for the change in January 2008 and she has given no satisfactory explanation as to why she could therefore not go her manager in April 2008 with an issue about her working conditions.
5.4. It has to be acknowledged that the respondent did accommodate the complainant's wishes by changing her work from an a la carte restaurant in the evenings to breakfast service. I accept the respondent's evidence that the change in location of the breakfast service did not have such an effect of the working conditions of the complainant from which an inference of discrimination would be taken.
5.5. For the first time at the hearing the complainant made an allegation that a manager made a comment to the effect that she was not pregnant but fat. She says she did not report the comment to anyone as she did not think she would be believed but there were witnesses to the incident. However, she did not say who the witnesses were and none were available at the hearing to provide evidence of the incident. The respondent had no knowledge of the incident but says they have a Grievance Procedure which the complainant would have received. I conclude that complainant has failed to establish facts from which an inference of discrimination could be drawn.
5.6. When she returned to work in March 2009 the complainant contends that after one month of working mornings her shifts became very mixed. This, as well as being asked to stay late on a number of occasions, she alleges made it very difficult for her to plan the breastfeeding of her child. Also she says that management reluctantly agreed to allow her to leave to breastfeed her child but she lost her break as a consequence. The respondent states that the complainant made no requests or complaints about breastfeeding and they facilitated her with the early shift as much as possible. The staff rosters and clock reports show that she worked from 9am - noon all on shifts up to 19 June 2009. After that she worked different shifts on 4 Sundays and 1 Saturday, and also on one Wednesday she worked from noon to 3pm. The complainant contends that her 'rosters were very mixed', that the clock was often wrong and inaccurate but gave no evidence to support this contention. She did submit her own diary entries for the last four weeks of her employment with the respondent and these reflect the rosters and clock reports submitted by the respondent. I therefore accept the respondent's evidence in relation to the shifts worked by the complainant and that any changes were due to their needs in running the business.
5.7. The respondent could not recall the complainant asking to be moved back to the evening shifts she did before becoming pregnant but accept she may have asked and may have been refused because there were no vacancies at the time.
5.8. In investigating as to whether any discriminatory treatment took place I am aware that S.I. No. 654/2004 - Maternity Protection (Protection of Mothers Who Are Breastfeeding) Regulations 2004 sets out the entitlements of breastfeeding mothers in workplaces and I note that these entitlements are limited to "an employee whose date of confinement was not more than twenty six weeks earlier" which means that the complainant would not be covered by these regulations as she came back to work when her child was over nine months old. Furthermore I can find no evidence that she was refused opportunities to breastfeed her child or that the shifts she was given were unreasonable in relation to her family status.
I have investigated the above complaint and make the following decision in accordance with section 79 of the Acts that the respondent did not discriminate against the complainant in relation to conditions of employment on the grounds of family status.
25 June 2012