Employment Equality Acts 1998-2011
Decision No: DEC-E2017-083
Parties
A Pastry Chef
(Represented by McGuigan Solicitors)
And
A Bakery
( Represented by ESA Consultants.)
File No: et-158893-ee-15
Date of 5th December2017
1. DISPUTE
This dispute involves a claim by A Pastry Chef (hereinafter referred to as (”the complainant”) that she was discriminated against by A Bakery (hereinafter referred to as ” the respondent”), on the grounds of gender when the respondent reduced her working hours due to her pregnancy, contrary to section 6 of the of the Employment Equality Acts (hereinafter referred to as ‘the Acts’) in terms of conditions of employment and constructive dismissal in accordance with section 8 of the Acts
2. BACKGROUND
2.1 The complainant referred a complaint under the Employment Equality Acts, 1998 and 2011 to the Equality Tribunal on 24th August 2015. On the 28th April 2017, in accordance with her powers under the Acts the Director General of the WRC delegated the complaint to me, Mr. Peter Healy, an Adjudication Officer for investigation and decision and for the exercise of other relevant functions under Part VII of the Acts. Submissions were received from both parties and a hearing of the complaint took place on the 13th and the 29th June 2017.
2.2 This decision is issued by me following the establishment of the Workplace Relations Commission on 1 October 2015, as an Adjudication Officer who was an Equality Officer prior to 1 October 2015, in accordance with section 83.3 of the Workplace Relations Act 2015.
3. SUMMARY OF COMPLAINANT'S CASE
3.1 The complainant is a Hungarian national and commenced her employment with with the Respondent in September 2013. The Complainant was employed as a Pastry Chef. She worked full-time and was paid at a rate of €8.65 per hour. Throughout 2014 the Complainant worked full-time with the Respondent for an average of 39.4 hours per week and this continued throughout the first month of 2015.
3.2 In January 2015 the Complainant’s mother, who is also employed by the Respondent, informed their manager that the Complainant was pregnant and the expected date of birth was June 2015. The Complainant continued to work full time throughout January 2015. At the end of the month the Complainant spent 10 consecutive days working in the kitchen. After this the Complainant spoke to her manager to inform him that she would not be able to work 10 consecutive days again but would require a day off every 5 days.
3.3 From the 1st day of February 2015 the Complainant experienced a dramatic reduction in the hours she was rostered for. The Complainant had not requested any reduction in her hours and was surprised to have had her hours cut so abruptly. Her job did not require any significant manual lifting and she had not received any medical advice that she was incapable of continuing her job as normal. The Complainant was capable and eager to continue to work full-time and this remained her desire over the following months. The reduction in hours was done without any consultation with the Complainant.
3.4. In the middle of February 2015 the Complainant was approached by an individual who she now believes was a HACCP (Hazard analysis and critical control points) officer. The Complainant was asked to fill out a form. The form was in English and was not translated for her. The Complainant did not understand the contents of the document as her written and spoken English is limited.
3.5 The Complainant continued to be given considerably less hours throughout the following months. In March 2015 there was a three week period where she was given no shifts whatsoever. The Complainant at all times was capable and willing to work her usual hours. The Complainant received no explanation from her employer as to why her hours had been reduced throughout this time. The Complainant asked both her supervisor and manager why her hours had been reduced on a number of occasions but she received no adequate response or explanation.
3.7. In addition to being given less working days each week, the Complainant had the
length of her shifts reduced. The Complainant had previously worked an 8-hour
shift. This was reduced to a 6-hour shift after she informed her employer that
she was pregnant. This also happened without any proper consultation or
notification to the Complainant. At no stage did the Complainant ever request a
reduction in working hours and she did not feel it was necessary or of any
benefit to her.
3.8. The Complainant was upset that she had her hours reduced in the manner
outlined above. She travelled from a considerable distance to her employment
and the shift from full-time to part-time hours had a significant impact on her
finances and caused her distress and anxiety.
4. SUMMARY OF RESPONDENT'S WRITTEN SUBMISSION
4.1 The respondent submits that any changes made to the complainants role and working conditions during her employment arose as a result of two coinciding factors that were at play in the variance to the working hours:
A) The outcome of the risk assessment
B) The request of the Complainant’s mother.
The respondent submits that in or around March 2015, the Complainant’s mother approached the General Manager, to advise him that her daughter could not cope with the pregnancy and if she could work less hours. The Respondent in consideration to the request and the finding of the risk assessment agreed to reduce the Complainant’s hours of work for a period of time to assist. On 1st March she worked 16 hours
On the 8th March she worked 31 hours. On the 15th March she worked 16 hours. The Complainant states that on the 22nd of March to the 5th April she was on holidays. This is contrary to the allegations of the Complainant who averts that there was a gap of three weeks.
4.2 The Respondent will say that the Complainant’s mother who was representing the Complainant, made it clear that her daughter was finding it too difficult to cope and requested time off, to which the Respondent agreed.
4.3 The respondent submits that under point 6 of the pregnancy risk assessment to wherein the Complainant stated “Yes” when asked “Are you required to stand or sit for long periods or carry out work involving much physical effort?”. The form also states “Fatigue from standing and other physical work can lead to miscarriage, premature birth and low birth weight. Thereafter the Complainant’s mother approached the General Manager requesting for her daughter to work less hours.
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 The issue for decision by me is whether or not the complainant was treated in a discriminatory manner regarding her conditions of employment, in circumstances amounting to discrimination, on grounds of gender, in terms of section 6 of the Acts and contrary to section 8 of the Acts, In reaching my decision I have taken into consideration all of the submissions, oral and written, made to me by the parties as well as the evidence given by the witnesses at the hearing.
5.2 Section 85A of the Employment Equality Acts 1998 and 2004 sets out the burden of proof which applies to claims of discrimination. It requires the complainant to establish, in the first instance, facts upon which she can rely in asserting the she suffered discriminatory treatment. It is only when those facts have been established and are regarded by an Equality Officer as sufficient to raise an inference of discrimination that the onus shifts to the respondent to rebut the inference of discrimination raised.
5.3 In Melbury Developments v Arturs Valpetters [1] the Labour Court, whilst examining the circumstances in which the probative burden of proof operates stated that a complainant "must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn". It added that "the burden of establishing the primary facts lay fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule”. That Court more recently extended this analysis when it affirmed the approach adopted by this Tribunal in Businkas v Eupat Ltd [2]that one of the facts which a complainant must establish is that there was a difference in treatment between him/her and another person who does not possess the relevant protected characteristic, (see Glasgow City Council v Zafar [1998] 2 All ER 953)
5.4 The entire period of pregnancy and maternity leave constitutes a special protected period as outlined in the European Court of Justice decisions in Webb v EMO Air Cargo (UK) Ltd [1994] ECR 1-3567, Brown v Rentokil Ltd[1998] ECR 1-04185 and Dekker v Stichting Vormingscentrum [1990] ECR 1-3941. Furthermore, it is settled law that where discriminatory treatment takes place during that special protected period, it raises a prima facie case of discrimination on the gender ground.
5.5 In the instant case, the parties agree on the timeline of events and it is accepted that the complainant was pregnant and that the respondent was aware of that pregnancy. However, the issue for consideration by me is whether the complainant’s hours were reduced against her wishes due to her pregnancy.
5.6 A hearing of this complaint was set for the 13th June. At that hearing it transpired that the complaints English was extremely poor and that she had brought a friend to act as an interpreter. During the hearing it became apparent that fair procedures could not be applied as an independent interpreter was required to allow the respondent to get direct answers during cross examination. The hearing was adjourned and recommenced on the 29th June with a WRC appointed interpreter. I also requested that the complaints mother attend to give direct evidence. At that hearing the complainants mother gave direct evidence that she had requested that the respondent reduce her daughter’s hours. The complainants mother was asked to consider her answer carefully but answered twice that she had asked the respondent to reduce her daughters working hours. I must note that she was extremely adamant in this regard.
5.7 Both mother and daughter worked side by side in the respondent’s organisation. The daughter was a shy person with very poor English and it is agreed by the parties that the mother would act as intermediary between her daughter and the respondent. I must find that the respondent’s action in reducing the complainant’s hours is as a direct result of a request from the complainant’s mother. Given the history of the working relationship I find that there is no evidence of discriminatory intent by the respondent and that the respondent rightly believed that the request from the mother was an accurate and true representation of the complainants needs. Further the reaction of the complainant in having her hours reduced was to go on holidays rather than query the reduced hours.
6. DECISION OF THE EQUALITY OFFICER.
5.1 In reaching my decision, I have taken into account all the submissions, written and oral that were made to me. Having investigated the above complaint, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts, 1998 to 2011. I find that the complainant was not subject to discrimination on the ground of race and her conditions of employment were not affected.
____________________________
Peter Healy
Adjudication Officer/Equality Officer
5th December 2017
[1] EDA 0917
[2] Arturas Businkas v Eupat Ltd (In Liquidation) EDA103