THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision DEC - E2012-036
Represented by Kate Kennedy B.L. instructed by DM O'Connor & Co., Solicitors)
Christine Connolly t/a Small World Crèche
(represented by Peninsula Business Services (Ireland) Ltd.)
File Reference: EE/2009/389
Date of Issue: 28/03/2012
Employment Equality Acts 1998-2008, Dismissal - Section 2(1), Section 6(1) - less favourable treatment, Section 6(2)(a)- gender, Section 6(2)(h) - Race, Section 8 conditions of employment, disciplinary measures, pregnancy and discriminatory dismissal.
1.1 This dispute concerns a claim by the above named complainant that she was discriminated against by the above named respondent on the gender and race grounds, in terms of Sections 6(1), 6(2)(a) & (h) of the Employment Equality Acts 1998-2008 and contrary to section 8 in relation to her conditions of employment and dismissal.
2.1 The complainant referred a complaint under the Employment Equality Acts to the Equality Tribunal on the 9th June 2009 alleging that the respondent discriminated against her contrary to the Acts. In accordance with his powers under section 75 of the Employment Equality Acts, 1998-2008 the Director delegated the case on the 3rd October 2011 to me, Marian Duffy, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of those Acts. This is the date I commenced my investigation. A written submission was received from the complainant on the 18th December 2009 and the 20th October 2011 and from the respondent on the 22nd February 2011. As required by section 79(1) of the Acts and as part of my investigation, I proceeded to hearing on the 28th October 2011. A final hearing took place on the 9th December 2011.
3. Summary of the Cases
3.1 The complainant is a Polish national and is a qualified childcare worker. She was recruited by the respondent following an interview. She was employed from 8th September 2008 until from until the May 2009 when her employment terminated. The complainant worked as a childcare worker in the respondent's crèche looking after children between the ages of two and two and a half. She worked one of three shifts 7:30am to 4:30pm, 8:30am to 5:30pm or 9:30 am to 6:30pm. The complainant said that she loved her job and had no trouble carrying out her duties and she believed she was getting on very well in her position. She said that she was unhappy about the fact that she was never issued with a contract of employment and this was her only concern up until February 2009. In or around the 10th February she said that she informed her manager that she was pregnant. She said that her manager FM told her to keep her leave so that she could take it during the 7th month of her pregnancy because she would no longer be able to work in the crèche at that stage of her pregnancy. The complainant said that she was not agreeable to this because she wanted to travel to Poland during the time it was safe to travel during pregnancy to visit her family and her doctor.
3.2 On the 4th of March 2009, the complainant said that she was advised by the respondent that she was being suspended from work with immediate effect. She was told that there had been an incident a week earlier where it was alleged that she had pushed a child into another classroom in an inappropriate manner. It was not made clear to her what the suspension was about. She said that the only matter it could relate to was an incident which occurred on the 24th February 2009 concerning a child who came into her classroom from the pre-Montessori group. On the day in question she had an appointment for a scan that afternoon so she had to finish work early. FM had told her she would only be paid for the 2 hours for her ante-natal clinic. In order to make up the extra half hour it would take her to travel to the hospital, she started work at 7:30am and worked through her morning break and cut her lunch break short so that she would get paid for the full day. The classroom where the complainant worked was divided in two with a class each side of the fence the play group on her side and the pre-Montessori group on the other. On the 24th of February there were 8 children in the complainant's group on her return from lunch some of the children were asleep and there was an extra child in the group who was disturbing the other children. The child belonged to the other group and she asked the teachers in that group to take her back but they offered her no assistance to take the child back to their group. The complainant said that she took the child by the hands and led her back to the other group. The child was reluctant to go and attempted to sit on the floor and she was crying by the time she got her back to the other group. She said that because of her pregnancy she could not lift the child and she denies that statement made by one of the teachers that "she lifted one of the children under her arms and plonked her on a chair." The complainant said that this could not have happened because there were risks attached to her pregnancy due to another medical problem she had. The complainant said that she did not bring the child into her class as suggested by the respondent. The complainant accepts she was asked by FM why the child was crying and she explained what happened and she believed that was the end of the matter and FM did not tell her that she was reporting the matter to the owner of the crèche. She denies that she shouted at the child or that she treated the child in an inappropriate manner.
3.3 On the 26th February 2009 the complainant said that when the rota was put up she noticed that she was allocated the two harder shifts for the period. She said that up to this everybody did a week of starting at 7:30 and the next week at 8:30 and the following week at 9:30. The complainant said that the 8:30 shift was the easier shift because the other two shifts involved duties including cleaning duties connected with the opening and closing of the crèche. The complainant said that when she raised the roster with FM she said to her that she was lucky she was not working in a named fast food chain. She believes that this was said to her because she was Polish.
3.4 The complainant stated that she was summarily suspended on the 4th of March 2009 she was escorted off the premises by FM and she was not allowed to say good bye to the children. She said that when she went home she was very upset and she decided to seek advice. On that same day she wrote to the management of the crèche seeking in writing the reason for her suspension from work and enquiring what was going to happen next in the process. She waited a few days for a reply and then she got an undated letter informing her that she was suspended from duty on full pay pending an investigation of allegations that she had physically and verbally abused a child. The complainant said that she heard nothing further from the respondent and she wrote to her again on the 14th of March 2009 stating that she was available to return to work but if the allegations proceeded further she wanted the details of the allegations copies of witness statements and a date for the hearing. She also pointed out that she wished to refute all the allegations. The complainant said that she waited a further 3 weeks for a response and then she received an undated letter which she said that she received on the 6th of April 2009 requesting her to attend an investigation meeting the next day, the 7th of April, and enclosing copies of statements made by staff about the allegations against her. Due to the short notice the complainant's solicitor requested a postponement of the meeting and it was rescheduled for the 14th of April 2009. The complainant attended the investigation hearing accompanied by her husband. The meeting was chaired by the owner of the crèche Ms. C and the manager of the respondent's other crèche Ms. K took the notes. The complainant said that she denied that she had ever physically or verbally abused the child in question. It was put to her that she had taken the child into her class from the pre- Montessori group and she denied this. She said that she had too many children in her group already and the recommended ratio was exceeded and she removed the child because she was disturbing the other children. The allegations contained in the statement of the witness stated the incident happened on the 26th of February and the complainant told the enquiry that she was sure the incident happened on the 24th of February the day she was going to the anti natal clinic and that the incident about the roster happened on the 26th of February. The complainant said at the investigation that she was suspended for 6 weeks before she was clearly informed of the allegations made against her. She said at the investigation that there were inconsistencies in the witness statements including the manager's statement which was unsigned. The complainant also wanted to know if the incident was considered so serious by the manager why did they wait for eight days before she was suspended. The complainant also wanted to know why the incident had not been recorded in the daily book.
3.5 The investigation hearing was adjourned and the complainant got a letter dated the 15th April informing her that a disciplinary hearing was taking place on the 21st April 2009 and would be chaired by Ms. K the manager of the respondent's other crèche and the person who had taken the notes at the investigation hearing. A note taker would also attend. The complainant was also provided with signed copies of the statements. The complainant attended with her husband as notified on the 21st of April. The incident was put to the complainant again. The complainant again told the hearing that the incident occurred on the 24th of February and not on the 26th as alleged by the respondent and that the matter which occurred on the 26th of February was a disagreement with her manager about the rota. The complainant also pointed out that the date on one of the statements was the 4th of February 2009. The complainant denied that she had shouted at the child. At the end of the meeting the complainant said that she was asked to return the keys of the crèche.
3.6 On the 24th April 2009, the complainant received 2 letters from Ms. C, one to tell her that the suspension was lifted, and the other was a first and final written warning which would remain on her file for a year. She was also told that she had a right of appeal. The complainant was unhappy about receiving a final written warning and she consulted her solicitor and he sent a letter of appeal outlining why he believed that a final written was not an appropriate sanction in accordance with the staff handbook. The complainant returned to work on the 5th May 2009. She said that she was demoted to the baby room and another employee had been recruited in her place and was in her position in the playgroup. She said that she was now assisting other staff in taking care of babies whereas in the playgroup she was in charge of the group of children ranging in age from two to two and a half. The complainant had to report to Ms. C. on her return and she said that she found her "extremely frosty". The respondent handed her a letter dated the 1st of May 2009 and said that it was for her solicitor. The appeal was set for the following day the 6th of May. Ms. C chaired the appeal hearing and another employee took the notes. The complainant and her husband attended. The complainant said that she was not happy about the manner in which the appeal was conducted and she believed that Ms. C had made up her mind about the matter before the appeal and she was not going to change it. The complainant said that she was stressed out at the meeting and was upset. She told Ms. C she was not feeling well. She got up and left and her husband remained for the rest of the meeting. The complainant said that she went to her doctor who told her that her blood pressure was high and he gave her a medical certificate stating she was unfit for work for 2 weeks. Her husband hand delivered it to the crèche that day.
3.7 The complainant decided to go to Poland to see the obstetrician/gynaecologist she had been attending because she was concerned that all the stress she was under might have a detrimental effect on her baby. She went to Poland on the 9th of May and returned on the 16th May 2009. On her return there were two letters from the respondent one dated the 8th May 2009 and the 15th May 2009. In these letters the respondent asked the complainant to reconsider the verbal resignation she made at the appeal hearing on the 6th of May 2009. The complainant said that she never resigned and in any event she had provided the respondent with a medical certificate which was accepted covering her absence from work for two weeks. The complainant then texted her manager Ms. FM on the 18th of May to find out the rota for her to resume work on Wednesday the 20th of May and her hours for the rest of the week. She got no reply so her husband called to the crèche to find out the time she would be starting work on Wednesday. He met Ms. C who told him that the complainant could not return to work until she replied in writing to her letters rescinding her resignation. The complainant consulted her solicitor and instructed him to reply to the letters as a matter of urgency and to tell the respondent that she had not resigned. The complainant said that she attended at the crèche on Wednesday morning the 20th of May 2009 with the intention of resuming work after her sick leave and her husband was with her for support. She could not get in because the code had been changed. She said that she met the manager at the door of the crèche she did not invite her in. She was told that she would have to wait for the owner and the manager sent her home. She waited outside until the owner arrived. She said that Ms. C did not allow her in to work either. She told her that she had resigned and that she was waiting a reply to her letters and she was sent home to rescind the resignation. The complainant said that she was very upset at her treatment and she went to her doctor and was certified sick for a further week. Her solicitor wrote again on the 20th confirming that she had not resigned. The complainant's husband then received a letter dated the 21st of May 2009, from the respondent's solicitor accusing him of intimidating behaviour towards the respondent on the occasions he called to the premises to get the complainant's hours and requesting him not to attend at the premises again. The complainant then received a further letter requesting her to rescind her resignation. The complainant's solicitor wrote to the respondent outlining the issues which had arisen between the parties and reiterating that the complainant had not resigned. In that letter he also stated that the respondent's actions had forced the complainant out of her job and he had been instructed to pursue complaints with the EAT and the Equality Tribunal. He also requested the complainant's P45.
3.8 The respondent's solicitor submitted that the complainant had a good relationship with the respondent up until she announced her pregnancy. Her conditions of employment changed and that the way she was treated from then on was solely connected to her pregnancy and that she was dismissed or forced out of her employment for no good reason. She submitted that the complainant is relying on the decision in the case of Rabbitte v EEC Direct (DEC-E2008/07) in which the Equality Officer stated that the close proximity of the complainant's dismissal to the announcement of her pregnancy to her employer was a fact of sufficient consequence to discharge the burden of proof. In the event of a finding that the complainant was not dismissed, the solicitor submitted that the case of Connolly v St. James Hospital FN UD 1275/2005 was relevant in so far as the respondent made the complainant's conditions of employment so intolerable that it was impossible for her to continue in her employment.
4. RESPONDENT'S CASE
4.1 The respondent runs 2 crèches one in NUIG Galway and the other in Barna. The complainant was employed as a child care worker on the 8th September 2008 following an interview and a very short trial period of employment. While she was recruited for the crèche in Galway she was accommodated in Barna because she lived there. The complainant was not provided with a written contract of employment but she was informed on a regular basis that they were being updated and would be provided as soon as that happened. She was provided with the Employee Handbook which includes the grievance and disciplinary procedures. The complainant worked in the playgroup room dealing with children aged two to two and a half and she had a range of duties she was expected to carry out every day. There were about ten different shifts the first started at 7:20am and the last shift started at 10am and the earliest shift finished at 16:20pm and the last shift finished at 18:30 and all the employees were expected to carry out cleaning duties regardless of the shifts they worked.
4.2 The respondents case is that the complainant informed her manager (FM) on the 20th January 2009 and not on the 10th of February as stated by the complainant, that she was pregnant and the records support this. The respondent denies that the complainants working conditions and attitude towards her changed as a result of notifying her pregnancy. It was also denied that the complainant was told to take her four weeks statutory annual leave in the seventh and eight month of her pregnancy.
4.3 The complainant worked with the play group in one half of a room which was divided by coloured fence approximately two feet high and on the other side there was a pre-Montessori group who were aged between two and a half and three. On the 26th February 2009 an incident took place involving the complainant and two children in the crèche where it was alleged that the complainant spoke loudly to them and pulled and pushed one of them into the pre-Montessori group. The respondent said that a parent and her children witnessed the incident and saw the complainant pulling the child and pushing her into the pre-Montessori side.
4.4 The manager FM said in evidence that she was notified of the complainant's pregnancy on the 20th January 2009. She said that she understood that the complainant was surprised and worried about her pregnancy and while chatting to her she mentioned that she had to take two weeks holidays before she went on maternity leave because she was struggling. FM denied that she told the complainant that she would have to save her holidays so that she could take them in the latter stages of her pregnancy. She said that she told the complainant if she needed different shift times or to take more breaks she would accommodate her. The complainant told her that she would continue with her normal rotas. On the 26th of February she said that she was in her office and at about 13:45 she heard a commotion and a staff member shouting and a child crying. She said that she left the office to investigate and she met a parent with her children and she heard one of the children say that wasn't very nice. The parent said that she had seen the complainant pulling the child up the hall and pushing her in the door of the pre-Montessori group. She said that she went into the pre-Montessori room to comfort the child. She called the complainant to the office to explain what happened. The complainant said that the children were waking the other children and she decided to take one to the other side. The child did not want to go and sat on the floor and had a tantrum. The complainant stated that when she opened the door to the pre-Montessori she said that she didn't want her anymore. She said that this was a joke and was not meant for the child. It was meant as a comment for the other staff. The owner of the crèche Ms. C was in America and FM told the complainant that she would be reporting the matter to her on her return. FM said that she also interviewed the two staff member on the pre-Montessori side and asked them to write down what they had seen. She said that she reported the matter to Ms. C on her return and the complainant was suspended on full pay on the 4th of March 2009 while an investigation took place.
4.5 FM stated that on the 26th of February she put up the roster for the following six weeks. The roster was changed for the complainant and another employee to accommodate other employees including two employees who were in college. The complainant and the other employee complained that the rosters were unfair because they were doing either the early or late shift for six weeks. FM said that she was upset and annoyed at the way the way she was spoken to by the staff and she did say to them that she had worked in a large fast food chain and there was never any problem with the rotas. She advised them to speak to Ms. C on her return. She denied that the remark was racially motivated.
4.6 Ms. C said that she went on holiday to New York on the 26th February 2009 and she returned to work on the 3rd March and FM filled her in on what happened in her absence. The complainant was out sick. She said that the crèche had received a lot of complaints from parents about the behaviour of staff including staff shouting in the play rooms. They sent out a memo to staff warning them about their behaviour and advising them of a meeting on the 3rd of March. The behavioural issues were raised with the staff at this meeting and they were warned that they would be subject to the disciplinary procedures if the issues raised were not addressed. The complainant was absent from this meeting because she was sick.
4.7 Ms. C said that FM informed her about the incident with the child and gave her a written account of what occurred. She said that she also spoke to the two staff members in the pre-Montessori group who gave her an account of what happened. She asked them to put the account in writing which they did and then she typed them up. The complainant was out sick on the 3rd and returned to work on the 4th of March. She called her to the office for a meeting and FM was also present. She said that she informed the complainant that a serious incident had occurred on the 26th of February 2009 in that she shouted at a child and pushed her and that she was suspending her on full pay pending further investigation. The complainant wrote to Ms. C on the 4th of March asking for the reasons for the suspension and clarification on the next steps. Ms. C responded by letter dated 6th March informing her that she was suspended pending the investigation of a complaint that she verbally and physically abused a child.
4.8 Ms C said that she wanted to speak to the parent who heard the complainant shouting at the child in the corridor. She said that when she spoke to this parent she made a verbal statement but she refused to give her a signed statement. She also spoke to all of the staff involved and got signed statements from them. She sent the statements to the complainant and by letter dated 6th April 2009 invited her to an investigation on the 7th of April. She was also sent a copy of the procedures and advised she could bring along a work colleague or a trade union official. The meeting was delayed until the 14th of April at the request of the complainant. Ms. C. chaired the meeting and there was also a note taker Ms. K who was the manager in the Galway crèche. The complainant who attended the hearing along with her husband said the incident occurred on the 24th February and not the 26th as stated by the respondent. She also denied that she either pushed or shoved a child in her care. She said that because she was pregnant she could not carry the child so she held her by the hands. Ms C. said that she decided to adjourn the meeting because the complainant's explanation differed from the statements from the staff and the verbal account from the parent. On 15th of April Ms. C sent a letter to the complainant requesting her to attend a disciplinary hearing on the 21st April 2009. The purpose of the hearing was to afford the complainant an opportunity to provide an explanation for the alleged inappropriate verbal intervention with a toddler and the alleged inappropriate physical intervention with a toddler. The hearing was chaired by FK the manager of the Galway crèche and another employee acted as a note taker. The complainant attended along with her husband.
4.9 Ms. C said that she received the written report of the disciplinary hearing and she discussed it with FK and in consultation with her and her legal advice she came to the decision that the complainant was guilty of inappropriate verbal and physical intervention with the child. She decided that a first and final written warning was the appropriate sanction. The complainant was sent a letter informing her that she was on a first and final written warning which would remain on her file for a year. She was also advised that she could appeal the decision within five working days outlining the reasons why she believed that the disciplinary action taken was either too severe or inappropriate. Ms. C also advised the complainant that the suspension was lifted and she could return to work on the 5th of May. On the 28th of April 2008 the complainant solicitor responded to the first and final warning letter stating that the respondent was in breach of the staff hand book disciplinary procedures in that the correct procedure outline there was not followed and that the incident should have been considered as a minor breach of the rules which had a lesser penalty than a serious breach of the rules which gave rise to the final warning. The complainant returned to work on the 5th of May. Ms. C said that she advised her that the suspension was lifted and that the appeal against the final warning would take place the following day. The complainant was sent to work in the baby room because there was a vacancy there. She denied that she was unfriendly towards the complainant.
4.10 The complainant attended the appeal hearing on the 6th of May together with her husband. The hearing was chaired by Ms. C and another staff member took the notes. Ms. C said that the complainant had no new evidence to offer. She disputed the day the incident happened and submitted it happened on the 24th of February the day she was going for a scan. She said that there were 2 extra children in the group when she returned from lunch and when she enquired why they were there she received no reply. The complainant said that the children in her group were asleep on their mats and one of the children had coins and threw them at the children in order to wake them. She asked for help from the staff on the other side but she could not get anybody to help her. She had no phone on her side to ring for help so she decided to take the child back to the other side. She opened the door but the child did not like going to the other side and she sat on the floor and began to cry. The complainant said that she took the child by her hands and brought her into the room saying to the other staff that the child should not have been in her room. She said that she was aware that there was a parent and child in the corridor behind her. The complainant denied that she shouted at the child or pushed or shoved her.
4.11 During the course of the appeal hearing the complainant raised a number of issues including, the ratio of staff to children in the room at the time, also issues about her treatment by a staff member on the pre-Montessori side and also by her manager FM. The complainant also said that the respondent had not followed the procedures outlined in the handbook in relation to disciplinary matters. Ms C said that the staff ratio to children was correct and in fact that the Pre-School Services said that they were overstaffed. In relation to the other issues the respondent stated that they had not been brought to her attention and that she could not solve issues that she had not been made aware off. The complainant also raised the issue of the rota and complained about FM who she alleged said that she was lucky that she did not work in a fast food chain. Ms. C said that she had investigated the incident with the child and she had 4 witness statements and as a result of the investigation a first and final written warning was the appropriate sanction. Ms. C said that the complainant stood up and said that she had been stressed by the suspension and was certified sick by her doctor. She said that the respondent wanted to get rid of her because she was pregnant and that she was going home. As she was leaving she said that she was not going back to work again as it was too stressful for her and she had to think of the baby. Ms. C said that she believed that the complainant had resigned from the employment. She read back the notes with the note taker and they were both satisfied that the complainant had resigned from the employment.
4.12 Later that evening the complainant's husband handed in a medical certificate on her behalf certifying her sick for 2 weeks and the respondent said that she accepted it. The respondent said that she sought legal advice and wrote to the complainant on the 8th of May asking her to reconsider her resignation. She said that she received no response and she wrote to her again on the 15th of May 2009 asking her to reconsider her resignation or else to confirm her resignation in writing. On the 19th of May 2009 the respondent received a reply from the complainant's solicitor. The solicitor pointed out that the complainant had texted the crèche to say she had not resigned and looked for her hours when she was due to resume work on Wednesday and had received no reply. He also informed her that the complainant was returning to work on Wednesday after her sick leave. She also accepted that the complainant's husband called to the crèche looking for the time she was due to resume work. The respondent said that she responded to the letter stating that she was still awaiting a response to her letters asking the complainant to rescind her resignation. On the 20th of May 2009 the complainant attended at the crèche along with her husband and she was looking for her hours of work. The respondent told the complainant that she did not have any hours for her until she rescinded her resignation. The complainant left and later that week she handed in a medical certificate covering her for a week. Ms. C said that she felt intimidated by the complainant's husband and she contacted the Gardaí who advised her to contact her solicitor which she did. The solicitor wrote to the complainant's husband about the alleged intimidation and asking him not to attend at the premises again. The respondent then received a letter from the complainant's solicitor stating that she had not resigned and indicating that she had instructed him to lodge a complaint for unfair dismissal. Ms C responded stating that no dismissal had taken place but the complainant had resigned from the employment. She also stated that the complainant did not address her when she came to the crèche on the 20th of May and all the talking was done by her husband. She was merely trying to communicate with the complainant to establish if she had resigned. The respondent then wrote to the complainant directly stating that she wished her to either confirm her resignation or rescind it and come back to work and once she returned to work she would reconvene the appeal hearing. She also said that if she was agreeable to this she was hoping to see her back at work on the 27th of May. A response letter was received from the complainant's solicitor stating that she had been forced out of her job and requesting her P45.
4.13 The respondent's solicitor submitted that the complainant has failed to establish a prima facie case of discriminatory treatment on the gender ground. She submitted that the allegations made are incorrect and that the complainant was disciplined and sanctioned and given a first and final written warning for her unacceptable behaviour towards a child in her care. She was in breach of the Child Care Act by not treating the child with dignity she was also in contravention of the respondent's Positive Behaviour Management Policy. The sanctions for such breaches are contained in the employee hand book under the disciplinary rules for gross misconduct. It was submitted that the respondent carried out a thorough investigation in a fair manner and there was no denying of natural justice to the complainant. It is denied that the complainant was dismissed. It was also denied that the respondent made the complainant's conditions of employment so intolerable that it was impossible for her to continue in the employment and that the reasoning in the Connolly case cited above did not apply. In order to ground a case of constructive dismissal the complainant must show that the employer's conduct was not petty or minor but that the conduct must go to the root of the employer employee relationship. Furthermore in circumstances where an employee resigns that an employee must show that they have exhausted all internal procedures available before doing so and I was referred to the case of Joyce v Brothers of Charity UD 407/2008 in that regard. It was submitted that the complainant did not use the internal grievance procedures available to her before she resigned.
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 The complainant's case is that she was discriminated against in relation to her conditions of employment and consequently was dismissed by the respondent on the grounds of gender and race in terms of Section 6(2)(a) and (h) of the Employment Equality Acts, 1998 - 2008, contrary to Section 8 of that Act. In making my decision I have taken into account all of the evidence, both written and oral, made to me by the parties.
The matters I have to consider is whether the complainant was discriminated against in relation to her conditions of employment on the gender and race ground and whether she was dismissed for reasons connected with her pregnancy. Section 6(2A) provides:
6(2A) "Without prejudice to the generality of subsections (1) and
(2), discrimination on the gender ground shall be taken to occur
where, on a ground related to her pregnancy or maternity leave, a
woman employee is treated, contrary to any statutory requirement,
less favourably than another employee is, has been or would be
And Section 8 provides in relation to conditions of employment
8(6) Without prejudice to the generality of subsection (1), an
employer shall be taken to discriminate against an employee or prospective
employee in relation to conditions of employment if, on any
of the discriminatory grounds, the employer does not offer or afford
to that employee or prospective employee or to a class of persons of
whom he or she is one --
(a) the same terms of employment (other than remuneration
and pension rights),
(b) the same working conditions, and
(c) the same treatment in relation to overtime, shift work, short
time, transfers, lay-offs, redundancies, dismissals and disciplinary
as the employer offers or affords to another person or class of persons,
where the circumstances in which both such persons or classes
are or would be employed are not materially different.
5.2 Section 85A of the Employment Equality Acts, sets out the burden of proof necessary in claims of discrimination. It provides "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."
It requires the complainant to establish, in the first instance, a prima facie case of discrimination, that is, facts from which it can be established that she suffered discriminatory treatment on the gender and race ground for reasons connected with her pregnancy. It is only when she has discharged this burden to the satisfaction of an Equality Officer that the burden shifts to the respondent to rebut the prima facie case of discrimination raised.
5.3 The complainant's case is that the respondent initiated a disciplinary procedure against her and wrongly accused her dealing with a child in an inappropriate way and she was not allowed to return to work after a period of sick leave. She submits she was treated in this manner after she informed the respondent of her pregnancy. In addition she submitted that (i) the rota was changed and she was given more difficult hours (ii) she was asked to take all her holidays in the 7th month of her pregnancy (iii) she was summarily suspended without proper investigation (iv) the inordinate delay in carrying out the investigatory hearing constituted a punishment in itself (v) she was asked to return the keys to the crèche while the matter was under investigation (vi) the respondent chaired the initial investigatory hearing and again chaired the appeal hearing (vii) and when she returned to work after the suspension she was demoted to the baby room. She submits that she was treated in this manner because of notifying the respondent of her pregnancy. There was a dispute as to when the complainant notified the respondent of the pregnancy but I am satisfied from the evidence from the respondent's diary that that the manager FM became aware of it in or about the 21st of January 2009. In relation to whether the complainant was told to take all her holidays in the 7th month of her pregnancy, I am satisfied that FM had a conversation with the complainant about holidays and her experience while she was pregnant. While FM stated that she did not tell the complainant to reserve her holidays for the 7th month of her pregnancy, I am of the view that it was not unreasonable for the complainant to construe from that conversation that the manager may have wanted her to take her holidays before her maternity leave, because at that advance stage of her pregnancy she may not have been able to carry out her duties.
5.4 The next matter for consideration concerns the change of the rota hours. There is a dispute about the date this incident happened but I am of the view it happened on the 26th of February as stated by the respondent. The complainant states that rather than getting a mixture of start times for her shifts she was given on early starts (7:30am) and late starts (9:30am). The complainant case is that there were extra duties attached to these shifts in relation to opening, closing and cleaning up. The respondent stated that the rota was necessary because of the needs of other staff in relation to study and getting lifts home. FM said that she was upset by the tone complainant and the other employee used and she did make a remark about working in a fast food chain and she agreed that she told them that they could do the rota themselves. I note that when the complainant notified FM of her pregnancy the complainant indicated to her that she was happy with the rota as it operated at the time and she had did not need any change to her hours. I am satisfied that there was a change in the rota for the complainant and that when she raised the matter with FM her concerns were not dealt with in an appropriate manner. The change in the rota was for a period of 6 weeks. I note from the evidence that the change in the rota was designed to accommodate two staff members, apart from the staff members who were studying, with rotas which suited them. For this reason I am satisfied that the complainant was treated less favourably than other staff that were not pregnant and the complainant's concerns about the rota were disregarded.
5.5 The next matter I have to consider is the complainant's suspension and the disciplinary action taken following the incident with the child. The complainant's case is that she had no alternative but to take the child back to the pre- Montessori side because she was disturbing the children who were asleep in her playgroup and because the ratio of staff to children on her side was too great. She submits that that the child belonged to the pre-Montessori group and when she asked for help from the other side it was not forthcoming and the telephone provided to seek help was not on her side of the fence. She accepts that when the child realised she was taking her to the other side she started to cry and had a tantrum in the corridor and was still crying when she delivered her into the other room. She denies the she handled the matter in an inappropriate way and submitted that even if she did the disciplinary sanction imposed on her was not in accordance with the respondents own disciplinary procedures. She submits that the matter was a minor incident within these procedures. She submits that the witness statements are inconsistent and were not dated or signed when she received them. The respondent said that she had four statements from employees and one from a parent who all said that the complainant either pushed or pulled the child and spoke loudly to her and told her that she did not want her anymore. She said that she considered the matter serious and decided to hold an investigation hearing and at this time she had 3 written statements from the staff and a verbal statement from the parent. She said that the complainant's account at the investigation differed from the witness statement and she decided to refer the matter to a disciplinary hearing. She decided in consultation with the Chair of the disciplinary hearing that the complainant was guilty of inappropriate verbal and physical intervention with a toddler. She determined that a first and final written warning was the appropriate sanction.
5.6 I have examined the witness statements and taking into consideration the evidence at the hearing I am satisfied that the complainant did shout or speak in a loud manner at the child and that she also said that she did not want her in the class anymore. While the complainant said that it was a joke and was meant as a sarcastic comment for the staff on the other side, I am satisfied that it was an inappropriate comment to make. It is also accepted by all parties that the child was crying. It appears that the child was having a tantrum because she did not want to go back to the other side. Witnesses for the respondent said that the complainant should have either handed the child over the fence to the other childcare worker or cleared a space to allow the child to work through the tantrum or to call for help. I note that the respondent accepted in evidence that the child should be on the pre-Montessori side. It seems to me that the complainant could not clear a space in the room where this child was disturbing other children who were sleeping and this was not an option to resolve the matter. The complainant said that that her usual practice would have been to carry the child but she could not lift her over the fence because she was pregnant. I note in the respondent's submission that the complainant was taken through the correct manual handling procedures when she notified her pregnancy and advised that she was not required to lift children to change them while she was pregnant and when she needed to comfort a child she should go down to their level rather than lift them up. The complainant therefore did not breach procedures by not lifting the child and handing her over to the other side. The complainant said that she had asked the childcare workers on the other side for help and she did not get any. I note from the witness statement of the childcare worker who gave evidence at the hearing that she knew that the children were disturbing sleeping children on the complainant's side of the fence and she did not offer any help even though it was accepted by management during the hearing that the child should be on her side. I note also that the complainant complained of conflict between herself and the staff member who did not give evidence at the hearing.
5.7 In the written records of the investigative meeting the complainant stated that she did not push or pull the child but she held the child's hands to take her through the corridor and into the other side and she did this because she was pregnant. In the witness statements one of the child care workers on the pre-Montessori side said that she was putting a child to sleep and she could not see what was happening but she heard the complainant shouting at the child and then she took her by the arm and pushed her in the door. This statement is inconsistent in that she had already said that she could not see what was happening. The other child care worker, who gave evidence at the hearing, said in her statement that she saw the complainant pulling the child by the upper arms. In her evidence at the hearing she said that she was sitting on the floor tidying the shelves when she heard the complainant telling the child that she could not be playing with children who were sleeping. She then saw the door opening and the child came into the room and the complainant said that "I don't want her anymore" and left. The child was crying and the complainant made a further comment across from her side. This witness said that she did not see the complainant pulling or pushing the child. She also denied that the complainant asked for help. The manager of the crèche did not see the incident and the parent who was in the corridor and saw the incident and made a verbal statement but she did not sign it on the advice of her solicitor. I note from the respondent's evidence that she decided because the parent did not sign the statement that the disciplinary hearing into the matter should be downgraded from the alleged physical and verbal abuse of a child to the inappropriate verbal and physical intervention with a toddler. It seems to me that the only person who had direct knowledge of whether or not the complainant pulled or pushed the child was this parent. I note that the complainant accepts that the child was upset and that she took her by the hands and led her into the other room. I am satisfied that the complainant shouted at the child in an inappropriate manner and that in doing so she was in breach of the procedures. I am not convinced however that the evidence supports the respondent's contention that the complainant pushed or pulled the child in the manner alleged and I accept the complainant's evidence in this regard.
5.8 The next question I have to decide is whether the first and final warning was the appropriate sanction for the complainant's behaviour under the grievance procedures and if she was treated less favourably than another employee who had breached the rules. The Employee Hand book sets out the disciplinary rules and procedures operating in the crèche. A person is liable to disciplinary action if they are found to have acted in breach of the rules The Staff Hand Book provides for three classification of conduct minor, major and gross misconduct. In the respondent's invitation to attend the investigatory meeting she said that she was investigating the alleged physical and verbal abuse of a child in the complainant's care and the invitation to the disciplinary hearing said that the purpose of the meeting was to investigate the alleged inappropriate verbal and physical intervention with a toddler. The respondent stated that the complainant's behaviour was in breach of the rules governing gross misconduct which provides: "you will be liable to summary dismissal if you are found to have acted in any of the following ways:
"(q) any breach of the Childcare Act 1991 and or the Childcare (pre School services) Regulations 1999.
Section 9(2) provides "A person carrying on a service shall ensure that no practices that are disrespectful, degrading, exploitive, intimidating, emotionally or physically harmful or neglectful are carried out in respect to of any child."
I note that under the rules concerning minor misconduct provides:
"You will be liable to disciplinary action if you are found to have acted in any of the following ways (a) to (e) ...........
(f) Inappropriate behaviour or ill treatment towards children."
The disciplinary action in relation to minor misconduct is as follows: first occasion formal verbal warning; second occasion written warning; third occasion final written warning and fourth occasion dismissal. The disciplinary action for major misconduct ranges from written warning to dismissal and for gross misconduct dismissal.
5.9 The complainant was found to have been in breach of the provisions of the Child Care Act 1991 and this offence comes within the gross misconduct. However the disciplinary hearing was called to investigate the inappropriate verbal and physical intervention with a toddler. Having regard to my findings at paragraph 5.7 above, I am of the view that this breach of the rules comes within the definition of the rules covering minor misconduct. I note that the manager said in evidence that the complainant's treatment of the child was not deliberate and she was satisfied that there was no intention to hurt the child. She said that the treatment was inappropriate and should not have happened. The complainant submitted that other staff who had seriously breached the rules had no disciplinary action taken against them. I note from the evidence that the respondent had received complaints from parents about a range of issues including complaints that the child care workers were shouting at the children and allowing them to run amok. Management said that they had also observed care staff shouting at the children. A general meeting was held with the staff on the 3rd of March 2009, the day before the complainant was suspended, to discuss about seven different matters of concern and the staff were warned if the behaviour continued that they would be disciplined. Management said at the time no staff member was disciplined because their behaviour did not warrant it. In relation to another incident with a child a member of staff who shouted at a child apologised to the parent. The complainant on the other hand was suspended for two months and given a first and final warning for her behaviour. This disciplinary action is not in the Staff Hand Book. The respondent submitted that the complainant had received a verbal warning in the past but there was no evidence that it was recorded on her file. While I accept that the complainant probably received a verbal warning in the past it appears not to have been a formal warning under the disciplinary procedures if it had been a formal warning it would have been recorded on her file. It was accepted that the complainant had never received a written warning in the past. I note that the respondent stated that she considered the complainant a good employee and she was satisfied that she was very good with the children. I am of the view that the complainant's behaviour came with the definition of minor misconduct and that a first and final written warning was not the appropriate sanction in the circumstances. It was contrary to the disciplinary procedures outlined in the Staff Hand Book. In deciding the disciplinary action warranted in the circumstances due regard was not given to the complainant's explanation, the fact that the child had a tantrum and she could not lift her because of her pregnancy. I am satisfied from the evidence that if the complainant had not been pregnant she would have lifted the child in accordance with the procedures and handed her over the fence to the staff on the pre-Montessori side. I would like to make it clear that I am not saying that the respondent was not entitled to impose a disciplinary sanction on the complainant but the sanction imposed was at the highest level of sanctions that could have been imposed apart from the sanction of dismissal. I find that the sanction imposed was disproportionate and not warranted in the circumstances. I am satisfied therefore that the complainant has established that she was treated less favourably and had a more severe sanction imposed on her than other staff who were in breach of the disciplinary rules and procedures.
5.10 The complainant said that she was demoted to the baby room when she returned after her suspension and she believes that this was not warranted. The respondent said that the parent of the child was notified of the incident just before the complainant was due back at work and she said that she did not want the complainant looking after her child. She further submitted that she would not consider working in the baby room was a demotion and that child care workers can be called on to work in any area of the crèche. This was the reason the complainant was put in the baby room together with the fact that the complainant's position in the play group room was filled and there was a need for staff in the baby room. In evidence the manager said that the child in question did not belong to the play group but to the pre-Montessori group because she was in the appropriate age group for that group. Therefore I cannot accept this reason for not putting her back into the job she held prior to her suspension. The respondent could only have filled the position in the complainant's class on a temporary basis for the duration of the suspension and I cannot accept that it was not possible for her to be returned to the position from which she was suspended. I would consider that the failure of the respondent to return the complainant to the play group class, a position she held before her suspension, as a further disciplinary action and a change in duties. I am satisfied therefore that the complainant has established that she was treated less favourably than other child care workers who had breached the disciplinary code.
5.11 The complainant also submitted that she was discriminated against when she was suspended. In relation to the suspension the Hand Book provides for a temporary suspension pending an investigation. The complainant was suspended on full pay for 2 months. The disciplinary rules and procedures provide that the correct procedures are followed when inviting a person to a disciplinary hearing and in the event that disciplinary action is necessary it is taken in a speedy fair uniform and consistent manner. I note that on the 4th of March the complainant was suspended but she did not get a letter of suspension until the 7th of March and only after she had written to the respondent seeking one. The complainant wrote again on the 14th of March seeking information on what was happening. She received a response on the 6th of April enclosing the witness statements and inviting her to an investigation the following day, the 7th of April. The complainant's solicitor sought a postponement for a week due to the short notice and the solicitor dealing with the matter was on holidays. The disciplinary hearing took place on the 21st of April, the final written warning was sent on the 24th of May and the complainant returned to work on the 5th of May. The respondent submitted that this was the first time that it was necessary to suspend an employee and she had to get legal advice in relation to the matter and the delay in getting the investigation started was due to the fact that they were waiting for the parent to sign a written statement. In my opinion suspending a person either with pay or without pay for such a long time has a serious impact on the employee and in this case the employee was pregnant and the evidence is that it caused her great stress. The onus is on an employer to clearly specify the allegations in writing at the earliest opportunity and to conduct the investigation in a speedy manner and this has been provided for in the respondent's own procedures. I am not satisfied that the respondent once she took the decision to suspend the complainant that she conducted the investigation with the utmost speed. The overall conduct of the investigation was not conducive to the resumption of a good working relationship. I note that the complainant's solicitor was advised that she could only be represented by a trade union official or a fellow employee the complainant was not in a union and my view asking a fellow employee to represent her in such circumstances was not an option. I accept that the complainant's husband was allowed to attend the hearings. I note the investigation hearing was adjourned because the explanation given differed from that of the statements. However the complainant was not provided with an explanation for the decision to go to the next stage of the disciplinary code. The investigation was upgraded to a disciplinary hearing even though the respondent had decided that the offence was now a lesser offence than the original investigation was convened to hear. It is clear from the letter inviting the complainant to the investigation hearing that disciplinary action could be imposed following this hearing without the need to go to a disciplinary hearing. I also note that the complainant was asked to return the keys of the crèche during the disciplinary hearing. The respondent said it was their usual practice to seek keys back if a person is absent. I am not satisfied that it was appropriate to do so during a disciplinary hearing and would have conveyed the wrong message to the complainant in relation to her ongoing employment relationship with the respondent. I am satisfied that the complainant has established that she was treated less favourably than other staff who had breached the disciplinary code in that other staff were warned about their behaviour and were not suspended.
5.12 It was submitted on behalf of the complainant that fair procedures did not apply to the investigation. The initial investigation was conducted by Ms. C and the manager of the of the Galway crèche Ms. K was the note taker. Ms. K conducted the disciplinary hearing and Ms. C. conducted the appeal. Ms C. said that she made the decision to impose the first and final written warning. It is my opinion that the respondent did not ensure that the whole investigation and disciplinary hearings were carried out in a fair and objective manner. It was not appropriate to have the disciplinary hearing carried out by the same person who took the notes at the investigation hearing or to have the same person who carried out the investigation hearing and imposed the disciplinary action conduct the appeal. Each stage of the investigation should have been carried out in an objective and by an independent person. I accept that the respondent is running a small organisation and it might have been difficult to get an independent person to conduct either the disciplinary hearing or the appeal. I note that the respondent is a member of an employer organisation and in evidence she said that she took legal advice from them throughout the investigation. I am satisfied that the respondent had resources available to her to carry out the disciplinary process in a fair and independent manner. I am not satisfied however that the complainant has established that she was treated less favourably than another person was treated or would have been treated in relation to this aspect of her complaint.
5.13 Taking the aforementioned findings into consideration I am satisfied that the complainant has established a prima facie case of discriminatory treatment in relation to her conditions of employment.
5.14 The next matter I have to consider is whether the complainant was dismissed or whether she resigned from the employment. The respondent's solicitor submitted that the complainant resigned and the complainant's solicitor submitted that she was dismissed or in the alternative that she was constructively dismissed. The complainant's case is that she was dismissed when the respondent did not roster her and allow her to resume work after a period of sick leave. The respondent's case is that the complainant resigned during the appeal hearing on the 6th of May 2009 and that she did not rescind that resignation. The complainant denied that she resigned and said that she believed that Ms. C had made up her mind about the final warning and the appeal hearing was not going to change the outcome. She was upset at the way the hearing was being conducted. She said she was not feeling well and stood up and said that she said that the life of her baby and her health was more important and that she was going home. She submitted a medical certificate later that day. I note that the complainant attended the doctor and she was certified as suffering from a stress related illness and high blood pressure. She was advised to rest and she was given a certificate for two weeks and this certificate was given to the respondent. The respondent accepts that the certificate was accepted. I am satisfied therefore even if the complainant had resigned at the appeal hearing that she rescinded it immediately by providing the respondent with a medical certificate. It is clear she left the meeting for the purposes of attending the doctor because she was not well. I am satisfied therefore that the complainant did not resign. I note that the respondent sent two letters to the complainant asking her to rescind her resignation. The complainant went to Poland to attend her gynaecologist and visit her family from the 9th to the 16th of May and did not receive the registered letters. As soon as she collected the letters from the Post Office on the 18th of May she texted the respondent to find out her rota for the 20th of May the date she was due to resume work after her sick leave and her husband also called to the crèche to find out the rota and did not get it.
5.15 Likewise I note that the manager said in evidence that she was instructed not to roster the complainant for duty on the 20th of May because the respondent wanted confirmation in writing from her that she had not resigned. I note in a letter from the complainant's solicitor to the respondent dated the 19th of May, it was confirmed that the complainant had not resigned. The complainant's solicitor stated in the letter "Our client's sick leave is due to finish today and she will be returning to work tomorrow. We should be grateful if you would kindly contact our client today with details of her Rota from tomorrow for the rest of the week". In reply to that letter the respondent in a letter of the 19th of May stated: "We still await a response from Dagmara on our letters asking her to reconsider her resignation ...." The complainant and her husband attended at the crèche on the 20th of May with the intention of resuming work and she was not allowed in by the manager. She was asked to return later to see Ms C. They met Ms. C outside the crèche who told her that she did not have any hours for her until she rescinded her resignation. The complainant's solicitor wrote again on the 20th of May stating that the complainant had not resigned. I cannot accept the respondent's contention that she needed a rescinding of her resignation before she could return to work. Even if I accept that the complainant resigned at the appeal hearing I am satisfied that she had rescinded that resignation as required by the respondent in that she had provided a medical certificate to cover her sick leave, sought her hours of work on two occasions and her solicitor had written to say that she had not resigned. I am of the view that the complainant's employment came to an end on the 20th of May 2009 when the respondent refused to allow the complainant resume work after her sick leave. I am satisfied that the respondent knew the complainant was returning to work on the 20th of May after a period of sick leave and that even if she understood that she had resigned she was not proceeding with it. I note that the complainant was not on the rota. It is clear that the respondent had made a decision not to allow the complainant to resume work on the 20th of May even though it had been made very clear to her by the solicitor that she had not resigned. I am satisfied that the refusal of the respondent to allow the complainant back to work on the 20th of May after a period of sick leave constituted a dismissal. Accordingly it is not necessary for me to consider the claim of constructive dismissal.
5.16 The Equal Treatment Directives (Council Directive 2002/73/EC), provides that unfavourable treatment on the grounds of pregnancy is direct discrimination even though there may be no male comparator, and this is set out in section 18(1)(b) of the Employment Equality Acts, 1998-2008.
In considering this case I note that in the case of Nail Zone Ltd and a Worker ADE/09/65 the Labour Court stated:
"In a line of authorities, starting with Dekker v. Stichting Vormingscentrum voor jonge Volwassen (VJV-Centrum)  IRLR 27 the ECJ has made it clear that, since pregnancy is a uniquely female condition, any adverse treatment afforded to a woman in consequence of her pregnancy constitutes direct discrimination on grounds of her gender. Furthermore, it is clear that the Complainant's pregnancy need not be the only or the dominant reason for the impugned treatment. It is sufficient if it is anything other than a trivial influence for what is complained of (see dictum of Peter Gibson LJ in Wong v Igen Ltd and others  IRLR 258)".
Article 10(2) of EU Directive 92/85/EEC states that where workers are dismissed during pregnancy the employer must cite substantiated grounds in writing for the dismissal. The Labour Court followed this approach in the case of A Company and A Worker, ED/02/20,
"Under the European Union (Burden of Proof in Gender Discriminations Cases) Regulations 2001, once an employee has shown that she has been dismissed or discriminated against while pregnant the onus switches to the employer to show that such dismissal or discrimination was justified. Where the employee is dismissed while pregnant or on maternity leave, both legislation and case law state that the employer must show that the dismissal was on exceptional grounds not associated with her pregnancy and such grounds, in the case of dismissal, as a matter of law and in the case of discrimination as a matter of good practice should be set out in writing."
5.17 The European Court of Justice in Brown v Rentokil Brown v Rentokil Case C-394/96 held that the entire period of pregnancy and maternity leave is a specially protected period during which both the EU Equal Treatment Directive EU Directive 76/207 and the EU Pregnancy Directive EU Directive 92/85 prohibits dismissal on the grounds of pregnancy. It held that the dismissal of a pregnant employee during that period can only occur in exceptional circumstances and for reasons unrelated to the pregnancy or maternity.
5.18 In relation to whether the complainant was discriminated in relation to her conditions of employment, I am satisfied from my findings above at paragraphs 5.3 to 5.11 that the complainant has established facts of sufficient significance to raise an inference of discriminatory treatment in relation to her conditions of employment. I am also satisfied that there is a causal connection between the treatment and the complainant's pregnancy given the close proximity of the announcement of the pregnancy to the discriminatory treatment and the fact that the incident which led to the treatment arose directly from the complainant's inability to lift the child because of her pregnancy. Applying the above cited case law I find the complainant has established a prima facie case of discriminatory treatment on the gender ground in relation to her conditions of employment. The onus shifts to the employer to rebut the prima facie case. I note that the respondent provided evidence that she had many employees who were pregnant and took maternity leave and that they experienced no difficulties and that they have confirmed that the respondent treated them very fairly during this period. I find that in the case herein that the respondent has failed to rebut the prima facie case of discriminatory treatment in relation to the complainant's conditions of employment.
5.19 In relation to my finding of dismissal, I cannot find any exceptional circumstances or reasons unrelated to the pregnancy of the complainant which would justify the dismissal. For this reason I find that the respondent dismissed the complainant in circumstances relating to her pregnancy and having regard to the jurisprudence of the Labour Court and the ECJ cited above this amounts to discriminatory dismissal on the gender ground under the Employment Equality Acts.
5.17 The complainant also claimed that she was discriminated against on the race ground. I find that there was no evidence put forward to substantiate the complaint and therefore her complaints cannot succeed under this ground.
6. DECISION OF THE EQUALITY OFFICER.
6.1 On the basis of the foregoing, I find that the respondent discriminated against the complainant on the gender ground in terms of section 6(2)(a) in relation to her conditions of employment and dismissal for reasons connected with her pregnancy contrary to section 8(6) of the Employment Equality Acts 1998-2008.
6.2 I find that the complainant has failed to establish discriminatory treatment on the race ground in terms of section 6(2)(h) of the Act and contrary to section 8.
6.3 Section 82-(i)(c) of the Act provides that I can make an order for the effects of the discrimination. The maximum award I can make under Section 82(4) is two years pay which in this case is €36,400. The EU Directives require sanctions for a breach of the principle of equal treatment to be effective, dissuasive and proportionate. In calculating the redress and taking into account all the circumstance of the case, I consider that an award in the amount of €20,000 is appropriate.
6.4 I therefore, in accordance with my powers under section 82 of the Employment Equality Acts, order the respondent to pay the complainant €20,000 in compensation for the effects of the discriminatory treatment and dismissal. This figure represents compensation for the infringement of her rights under equality legislation in relation to discrimination and does not include any element relating to remuneration, and therefore it is not taxable.
28th March 2012