EQUALITY OFFICER’S DECISION No. DEC-E2017-009
Represented by Richard Grogan & Associates
Represented by Peninsula Business Services
File No. et-156141-ee-15
Date issued: 31st January, 2017
The Complainant was employed as a Mushroom Harvester on 23rd July 2013. She was paid a piece rate per unit. She has claimed that she has been discriminated on grounds of gender and race.
The complaint was referred under the Act to the Director of the Equality Tribunal on 19th May 2015. In accordance with his powers under Sec 75 of the Act, the Director delegated the case to me Eugene Hanly, an Equality Officer, for investigation and decision. Submissions were received from both parties. As required by Sec 79(1) of the Acts a hearing was held on 3rd January 2017.
In reaching a decision I have taken into account the written and oral submissions of both parties.
Summary of Complainant’s position
The Complainant stated that she advised her employer in September 2015 that she was pregnant. The Employer then stopped giving her work because she was pregnant and because she was Lithuanian. She commenced her maternity leave on 10th January 2015.She has claimed that she was discriminated against on grounds of her gender and race.
She is seeking compensation.
Summary of Employer’s position
The Employer stated that she advised them that she was pregnant in mid-June 2014. This was conformed in writing by her GP dated 11th June 2014. It stated, “This patient is pregnant with an EDD 26/01/2015”.
They stated that she worked the remained of June, all of July, August and September. She was out on certified sick leave for the first two weeks of October and for all of November. She also sated in evidence that she was unable to attend work for the other two weeks in October and from 24th November to 7th or 8th December. She went on maternity leave on 10th January 2015.
Therefore she has worked for a period that she has claimed that she was not allowed to work. She was not available for work for most of the time that she has claimed that she was prevented from working.
This complaint has no basis and is rejected.
Findings/Conclusions of the Equality Officer
Sec 6(2) of the Act provides that the complainant has to establish that she was treated less favourably.
Sec 85A of this Act sets out the burden of proof which applies to claims of discrimination. It provides in effect that where facts are established by or on behalf of a complainant from which discrimination may be inferred it shall be for the respondent to prove the absence of discrimination.
I find that the Complainant advised her employer that she was pregnant on 11th June 2015 not September as alleged.
I find that the Complainant had worked for June, July, August and September despite the fact that she had alleged that she was prevented from doing so on grounds of her pregnancy and that she was Lithuanian.
I find that she was on certified sick leave for two weeks in October.
I note that she gave evidence at the hearing that she was unwell for the remaining time in October but it was not certified. Therefore I find that she was not available to work in October despite that fact that she has alleged that she was prevented from working.
I note that she was certified unfit for work from the beginning of November to 24th.
I note that she gave evidence that she was unwell from 24th November to 7th or 8th of December but it was not certified, despite that fact that she alleged that she was prevented from working then.
I note that she did not return to work after the 7th or 8th of December and went on maternity leave on 10th January 2016.
I find that she has not established any evidence to support her original allegation that she was prevented from working.
I note that this employer employs mainly non-nationals and I found no evidence that she was prevented from working because she was Lithuanian.
I find that the Complainant has not established any evidence to support her original allegations of discrimination.
I find that the Complainant has not established a prima facie case of discrimination.
Decision of the Equality Officer
I hereby make the following decision in accordance with Sec 79(6) of the Employment Equality Acts
I have considered the oral and written submissions presented at this hearing.
I have decided that the Complainant has not established a prima facie case of discrimination.
I have decided that this complaint has failed.