EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E2012-112
The Docklands Partnership
(Represented by Mr Ronan Cosgrave B.L. instructed by
Brady McGreevy Walsh Solicitors)
File reference: EE/2009/852
Date of issue: 3 September 2012
HEADNOTES: Employment Equality Acts - Family Status - Conditions of employment
1.1. This dispute concerns a claim by Ms Anna Olejniczak that she was discriminated against by The Docklands Partnership on the grounds of family status contrary to section 6 of the Employment Equality Acts in relation to conditions of employment in terms of section 8 of those Acts.
1.2. The complainant referred her claim to the Director of the Equality Tribunal on 25 November 2009 under the Employment Equality 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 19 July 2012 and final information was received on 9 August 2012.
2. COMPLAINANT'S SUBMISSION
2.1. The complainant started working for the previous owners of the shop where she worked on 21 September 2005. The respondent took over the running in March 2007 under a transfer of undertaking and the staff were told their contracts would be respected by the owners. The complainant submits that up to the time she went on maternity leave she worked an average of forty hours per week and submitted a number of pay slips to substantiate this.
2.2. The complainant went on maternity leave on 30 June 2008. She returned to Poland during her maternity leave but kept in touch with the manager (Ms A), who was also a friend. The complainant submits that she always intended to return at the end of her maternity leave. She spoke to Ms A about returning to work in January 2009 and was told that Ms A had spoken to the Director of the respondent (Mr B) who said that the situation in the shop had gone very quiet and there was no work available but there might be some work in the Spring. She returned to Dublin in February 2009 and spoke to Mr B in the shop. He said that the shop was not busy and he did not have any hours for her. Consequently she returned to Poland.
2.3. The complainant submits she returned to Ireland again in May 2009 and returned to work in the second week in June 2009 until the shop closed in August 2009. After the first week, when she worked twenty hours, her hours were severely restricted and she worked between ten and fifteen hours per week. The complainant submitted a number of pay slips to substantiate this.
2.4. The complainant accepts that the shop was quieter and less hours were available but submits that two other workers had their hours reduced much less and were working between twenty five and thirty hours per week up to the closure of the shop.
3. RESPONDENT'S SUBMISSION
3.1. The respondent submits that in January 2009 Ms A did talk to Mr B about the complainant returning to work. Mr B gave evidence at the hearing that he said there was no problem with the complainant returning to work but she would be on less hours, like everyone else. He does not know why she did not return to work then but understood that she may not have been happy with the reduced hours.
3.2. Mr B has no recollection of speaking to the complainant in February 2009 and submits he had no contact with the complainant, either directly or indirectly through Ms A, until she returned to work in June 2009. Mr B accepts that when she returned to work the complainant worked less hours than the two other employees referred to by the complainant. However, he submits that Ms A, who was a friend of the complainant, was responsible for the rosters and the allocation of hours. His role was to ensure that only an agreed overall number of hours were being rostered each week. This was very important as the business was going through a downturn, which resulted in it closing in August 2009.
3.3. The respondent submits that he was never aware of the complainant making any complaint about not returning to work or being allocated a reduced number of hours.
3.4. The respondent contends that, as far as they were aware, the complainant was not in Ireland after her maternity leave until May 2009 and she then returned to work for the respondent shortly after this. This was on reduced hours because of the reduced level of business.
3.5. The respondent submits that the complainant has failed to establish primary facts which would lead to an inference of discrimination.
4. FINDINGS & CONCLUSIONS
4.1. I have to decide if the complainant suffered discriminatory treatment on the grounds of family status in relation to conditions of employment. 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.
4.2. The complainant finished her maternity leave in December 2008 and contends she was discriminated against because she was not allowed to return to work when she wanted to in January 2009. She contends she was only allowed to return to work in June 2009 and on much reduced hours; from her hours before she went on maternity leave and by comparison with other members of staff. The respondent says that as far as they were aware the complainant did not return to Ireland until May 2009 and she returned to work soon afterwards; albeit on reduced hours. This was because of the downturn in business leading to the shop closing in August 2009.
4.3. There is no documentary evidence from either party to show when the complainant requested to return to work and if this had been agreed to or not. Also, neither party brought the Manager (Ms A) to act as a witness to deny or confirm their contentions. Therefore I have to assess the written and verbal evidence given by the complainant and Mr B. Both parties agree there was contact through Ms A in January 2009. Mr B says he told Ms A that the complainant could return to work but it would be on less hours. He says he heard no more but thought she may not have been happy with the reduced hours being offered. Whilst the complainant says she was told that there was no work available at that time. The documentary evidence that is available is the staffing rosters for 2008 and 2009 that were submitted by the respondent. These show that in the complainant's last week of work in June 2008 five employees, excluding the manager worked a total of 170 hours, averaging 34 hours each. Whilst in January 2009 three employees, excluding the manager, averaged a total of 95 hours per week; or just under 32 hours per week each. Clearly the total hours had reduced significantly and there was a reduction from five to three employees but individually the employees were only working around two hours per week less than there had been in June 2008.
4.4. On the balance of the evidence provided I accept the complainant's version of events that she contacted the respondent in January and February 2009 about a return to work and was told that there was not enough work for her. Furthermore, it is clear that when she was allowed to return to work she did so on less hours than two other employees with whom she had worked in 2008.
4.5. The situation regarding a woman returning to work after maternity leave is set out in EU Directive 2002/73/EC Council Directive 2002/73/EC of 23 September 2002 amending Council Directive 76/207/EEC on the implementation of the principle of equal treatment for men and women as regards to access to employment, vocational training and promotion, and working conditions which states: "A woman on maternity leave shall be entitled, after the end of her period of maternity leave, to return to her job or to an equivalent post on terms and conditions which are no less favourable to her and to benefit from any improvement in working conditions to which she would be entitled during her absence.". These provisions have been enshrined in the Maternity Protection Acts which state; "on the expiry of a period during which an employee was absent from work while on protective leave, the employee shall be entitled to return to work ... in the job which the employee held immediately before the start of that period", and "job means the nature of the work which she is employed to do in accordance with her contract of employment and the capacity and place in which she is so employed". It follows therefore that any departure from this entitlement constitutes direct discrimination of the woman concerned.
4.6. I therefore conclude that the complainant was discriminated against when she was not allowed to return on completion of her maternity leave and this discrimination continued when she was allowed to return to work but on less hours than she would have worked if she had not gone on maternity leave.
I have investigated the above complainant and make the following decision in accordance with section 79 of the Acts that the respondent did discriminate against the complainant in relation to conditions of employment.
I order the respondent to pay the complainant €11,000 in compensation for the discriminatory treatment suffered. This figure represents compensation for infringement of her rights under equality legislation in relation to discrimination and does not include any element relating to remuneration, and is therefore not taxable.
3 September 2012