SECTION 83 (1), EMPLOYMENT EQUALITY ACTS, 1998 TO 2011
CLELANDS SUPERMARKETS LTD
(REPRESENTED BY PENINSULA)
- AND -
(REPRESENTED BY KRYSTIAN BOINO SOLICITORS)
Chairman: Mr Haugh
Employer Member: Ms Doyle
Worker Member: Mr Shanahan
1. Appeal of Adjudication Officer's Decision No: DEC-E/2017/025.
2. The Employer appealed the Decision of the Adjudication Officer to the Labour Court in accordance with Section 83(1) of the Employment Equality Acts, 1998 to 2011. A Labour Court hearing took place on 8 November 2017. The following is the Determination of the Court:
Background to the Appeal
This matter came before the Court by way an appeal brought on behalf of Cleland Supermarkets Limited (“the Respondent”) against a decision of an Equality Officer, DEC-E/2017/025, dated 24 May 2017. The Respondent’s Notice of Appeal was received by the Court on 30 June 2017. The Court heard the appeal in Dublin on 8 November 2011. Ms Poslajko (“the Complainant”) alleges she suffered discrimination and victimisation on grounds of gender arising from her pregnancy whilst employed as a shop/check-out assistant at the Respondent’s premises in Kildare. Her claim of discrimination (but not of victimisation) was upheld by the Equality Officer who awarded her compensation of €6,000.00.
The business in which the Complainant was employed at all material times had originally been operated by ESK Price Limited. The Respondent assumed control of the business on 4 June 2014. At that point in time, the Complainant was normally rostered for thirty-nine hours per week. She was paid €9.66 per hour.
The Complainant’s Evidence
The Complainant’s second pregnancy was confirmed in August 2014. She obtained a letter from her GP confirming her pregnancy. Her evidence to the Court is that she had a conversation thereafter with a Ms Donnelly who had a supervisory/managerial role in the store in which she advised Ms Donnelly of her pregnancy and of the letter from her GP confirming this. On Ms Donnelly’s instruction, she says, she left the letter on a desk in the administration office.
The Complainant told the Court that on a date later in August 2014, Mr Cleland called her to the office and reprimanded her for allegedly making a number of mistakes and advised her that she would have to work harder. At the time, the Complainant submits that she was suffering from morning sickness and was often uncomfortable sitting at the check-out. A number of weeks after that meeting, Mr Cleland, she says, again called her into the office and informed her that her weekly hours were to be cut from thirty-nine to twenty-four because she was, in his view, not working as hard as other colleagues. She says that Mr Cleland also reprimanded her about her appearance and said she needed to look better and appear happy. The Complainant believes that no other employee’s hours were reduced on that occasion. She did not receive any written confirmation of this reduction in hours from her employer at this time. However, her evidence is that, in the course of that meeting, Mr Cleland presented her with a pre-prepared final written warning and advised her that she had to sign it. The letter was presented in English only; no translation into the Complainant’s native language was made available to her. The Complainant signed this letter although there had been no disciplinary process conducted by the employer prior to presenting her with it.
The Complainant commenced her maternity leave in March 2015. During the maternity leave period, the Complainant approached her local social welfare office to enquire as to what assistance she might be entitled to avail herself of in her changed circumstances where she anticipated having only twenty-four hours’ work over three days per week. Staff at the social welfare office requested her to obtain a letter from her employer confirming that her working hours had been reduced. She obtained and submitted the letter. A letter to this effect dated 23 June 2015 was exhibited to the Court.
The Complainant sought advice from her solicitors who wrote to the Respondent by letter dated 16 July 2015 advising that the Complainant believed that the reductions which the Respondent had made to her hours related directly to her pregnancy and, therefore, constituted direct discrimination on the gender ground.
While still on maternity leave, the Complainant received a request from her employer to attend at the store for a further meeting. It is clear from the Respondent’s letter inviting her to this meeting that the proposed meeting was prompted directly by her solicitor’s letter of 16 July 2015. The Complainant declined to attend this meeting.
Immediately following her return from maternity leave in October 2015, Mr Cleland informed the Complainant that her hours were being reduced again and that because the business was not performing she would only have eight hours’ work per week. The Complainant told the Court she believes there were part-time employees (whom she named) working in the store doing more hours per week than the eight hours being offered to her at that time. A number of the named employees were students who commenced employment after the Complainant’s return from maternity leave. They were engaged in anticipation of the forthcoming busy period in the lead up to Christmas.
The Complainant told the Court that eight hours’ work per week didn’t provide here with a sufficient income to support her family. She sought and obtained an additional day’s work per week at Kildare Village. Her manager there then committed to providing her with further additional hours so the Complainant decided to resign from her employment with the Respondent. She did so by letter dated 24 March 2016.
The Respondent’s Defence
The case advanced on behalf of the Respondent was that Mr Cleland was unaware of the Complainant’s pregnancy before November 2014 and, therefore, any disciplinary action and/or reduction in her hours which took place prior to that are unrelated to the pregnancy. Mr Cleland told the Court that he has never had sight of the GP’s letter confirming the Complainant’s pregnancy that she believes she left in the office in March 2014. Mr Cleland’s evidence is that he directly asked the Complainant if she was pregnant and she confirmed that she was three months pregnant at that stage.
The Representative for the Respondent also opened the Complainant’s original contract of employment given to her by the Respondent’s predecessor as employer. This provided for a thirty-one hour per week arrangement. The Respondent also opened a copy of the roster that related to the final week prior to the Respondent acquiring the business. It showed that the Complainant worked 27 hours in that week. He submitted that Mr Cleland voluntarily increased the hours of each of the full-time workers to thirty-nine per week when he assumed control of the business, in order to improve turnover.
The Court found the Complainant’s version of events to be credible and coherent. The Court accepts that her evidence to the effect that sometime in August 2014 she provided the Respondent with a letter from her GP confirming her pregnancy. It is simply not credible for the Respondent’s witness to claim that he was unaware of her pregnancy for some months after this date and that he has never had sight of the letter from the GP. By his own evidence, Mr Cleland confirmed that during the period in question he was present in the shop on a daily basis. He had frequent contact with the Complainant. It was her second pregnancy and her colleagues working in close proximity to her in a relatively small work environment must have known about the pregnancy relatively soon.
The employer has not produced any documentary evidence to the Court that demonstrates that it engaged in a bona fide disciplinary process to address alleged underperformance issues on the part of the Complainant. The absence of such documentation raises serious concerns for the Court in relation to the nature of meetings to which the Complainant was called in August and September 2014, and in relation to the employer’s decision to reduce the Complainant’s hours from thirty-nine to twenty-four. In all the circumstances, the Complainant has made out a prima facie case that the initial reduction in hours was a consequence of her pregnancy. Likewise, the second reduction in hours from twenty-four to eight occurred following the Complainant’s return from maternity leave in October 2015 and more crucially following correspondence from the Complainant’s solicitors alleging that the earlier reduction had been in breach of the Employment Equality Act 1998.
Having regard to the totality of the evidence before it, the Court is of the view that the Complainant has made out a prima facie case of discrimination on the gender ground and of victimisation. The Respondent has failed to adduce any evidence that rebuts the claims advanced on behalf of the Complainant.
The Court measures the appropriate compensation in all the circumstances as follows:
€12,000.00 for the effects of the gender discrimination and €6,000.00 for the victimisation.
The decision of the Equality Officer is varied accordingly.
The Court so determines.
Signed on behalf of the Labour Court
21 December 2017______________________
Enquiries concerning this Determination should be addressed to Michael Neville, Court Secretary.