ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00017848
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998
Date of Adjudication Hearing: 15/03/2019
Workplace Relations Commission Adjudication Officer: Catherine Byrne
This complaint was submitted to the WRC on November 5th 2011. In accordance with Section 79 of the Employment Equality Acts 1998 - 2015, it was assigned to me by the Director General. I conducted a hearing on March 15th 2019 and gave the parties an opportunity to be heard and to present evidence relevant to the complaint.
At the opening of the hearing, it was established that the legal name of the company is Fellerim Limited and not the name given by the complainant on her complaint form. The respondents agreed that the name of the company could be amended on the complainant’s application and in this decision.
Ms Loughlin represented herself, with the support of her husband. Fellerim Limited was represented by Ms Niamh Daly of IBEC, assisted by Ms Magda Kozub. The company’s Area Manager and Human Resources Manager also attended and gave evidence. While the names of the parties are published in this decision, I will refer to Ms Loughlin as “the complainant” and to Fellerim Limited as “the respondent.”
The complainant had a baby on January 19th 2019 and is currently on maternity leave. She commenced with the respondent in 2005 and is now a senior beauty therapist and this was her fourth pregnancy while she was employed by them. She generally works 22.5 hours per week on Sunday, Monday and Tuesday. Her case is that in May 2018, she informed her managers that she was pregnant and she alleges that she was then discriminated against on the grounds of gender and family status. This complaint arises from issues related to payment of wages and rostered hours from June to September 2018.
The respondents deny the allegations of discrimination. At the hearing, the area manager said that the complainant is a skilled and highly-valued employee and that she consistently has a waiting list of clients seeking treatments. For the company, Ms Daly argued that the complainant has not established the basic facts which show that discrimination occurred, and she has not identified a comparator to show that because of her gender and family status, she was treated less favourably than another employee.
Summary of Complainant’s Case:
Non-payment of Wages
The June public holiday in 2018 fell on Monday, June 4th and the complainant worked for 6.5 hours that day. She also worked for 6.5 hours on Sunday of that weekend. Instead of being paid for 13 hours, her payslip which was produced in evidence shows that she was paid for 12.5 hours. She was also paid for eight hours in respect of her entitlement to public holiday pay.
The complainant had hospital appointments on July 2nd and September 4th and 17th, coinciding with her working days. She said that she was not paid for the four hours she attended the hospital on each of these days.
Reduction in Hours
Tuesday, June 5th was a normal working day for the complainant, but she said that she was removed from the diary in the clinic for that day. She said she asked her manager if this could be treated as a day’s holidays, but this was refused.
On June 12th, the complainant said that she was asked to take the following Sunday off as a day’s holiday and to inspect the calendar and to take any other days off that she needed. At the hearing, the complainant said, “to the best of my knowledge, no other staff member was asked this” and she felt that they were “trying to remove me from the clinic as much as possible.”
On June 13th, the complainant said that she told her manager that she had a hospital appointment related to her pregnancy on July 2nd at 10.15am. On June 26th, she said that her manager said that there was no need to come back to work after the appointment. The complainant said that this led to a panic attack because she was anxious that she might not be able to pay her mortgage that month. On the day of her appointment, Monday, July 2nd, the complainant said that she returned to work at 2.00pm. She said that her assistant manager asked her why she was back at work, and that she felt extremely upset as a result. She said that this conversation with her assistant manager took place in the public area of the clinic. The complainant said that she reported for work as normal on Tuesday, July 3rd, but she was sent home three hours early. That week, she was left short of four hours’ pay in relation to the time she attended her ante-natal appointment.
On July 10th, the complainant said she was called to a meeting and told that, on a temporary basis, her hours were being reduced and that she would only be required to work on Sundays. She said that her managers said that the hours of other staff were also being reduced; however, she argued that she was the only person whose hours were reduced by 75%. That evening, she sent an e mail to her manager asking if the reduced hours were temporary, what the selection criteria for reducing hours was and how the proposed changes impacted on her contract of employment.
A meeting was arranged for Sunday, July 15th with the complainant and her area manager. This manager attended the hearing and gave evidence about what occurred at the meeting. The area manager explained to the complainant that the main reason that her hours were being reduced was because she was recovering from an ice-skating injury which resulted in a broken wrist. She had been out of work following surgery form December 2017 until March 2018, and when she returned to work, she was put on “light duties” which meant that she could not do the work that she was specifically employed to do, which is laser hair removal. At the meeting, the complainant said that she could return to laser hair removal work immediately and she was asked to get a letter from her doctor to confirm this. She got this letter from her doctor on July 18th. In a telephone conversation with the HR manager on July 25th, she agreed that she would resume her normal hours on August 13th, although she was taking one week’s holidays beforehand.
On September 18th, the complainant was covering reception in the clinic and she read an e mail that was open on the computer screen. The mail was from her manager to the assistant manager with a query about why the complainant and another colleague had no sales the previous day, which was the day of the complainant’s most recent hospital appointment. She said that she felt extremely anxious as a result of this mail and she had another panic attack. On September 24th, the complainant said that her doctor advised her not to return to work.
In conclusion, in her evidence at the hearing, the complainant said that she has been with the company for many years and that she always tried her best in each role to which she was assigned. She said that she consistently received very positive feedback from clients and she feels she doesn’t deserve to be treated in the manner she has outlined. She said that her complaint is not so much with the company, as about how her manager and assistant manager responded to her announcement that she was pregnant. She said that the incidents seemed to be one after another and that she thinks she has been left short of four and a half hours’ pay altogether. She said that she feels that she was too high a cost for the company and that they wanted to move her out. She said that she doesn’t think she can go back to work at the end of her maternity leave.
Summary of Respondent’s Case:
For the respondent, Ms Daly presented a submission setting out the company’s position regarding the allegations of discrimination on the family status and gender grounds. She said that the complainant was absent in December 2017 following an ice-skating injury in which she broke her wrist. When she returned in work in March 2018, her wrist was strapped up and she could not carry out laser treatments. She was allocated light duties on reception and on preparing and following up after doctors’ treatments. She continued to do these light duties until August 2018, when she got a cert from her doctor to say that she could resume laser treatments.
The respondent’s case is that the reduction in hours had no connection with the complainant’s pregnancy but was associated with the downturn in business during the summer months and the fact that she was not able to do her normal job as a laser hair removal therapist. All the other therapists in the clinic also had their hours reduced.
At the hearing, the area manager said that the complainant was a very valued employee with an excellent client list and that there is no reason for them to want her to leave or to “push her out” as she suggested. When she returned to work after she broke her wrist, they could have told her that there was no suitable job for her, as she was not able to carry out laser treatments. However, the respondent allocated her work that she was able to do, without any loss of earnings. When the business slowed down in the summer months, like other employees, her hours were reduced. The company argues that this had nothing to do with the complainant’s pregnancy but, was associated with the dip in business and the fact that the complainant could not do laser treatments. As soon as she got a certificate from her doctor confirming that she could return to her normal job, the complainant’s hours were reinstated to three days a week.
The human resources manager who attended the hearing said that 80% of the company’s 200 employees in Ireland are female and in the first three months of 2019, 15 employees are either on maternity leave or due to take maternity leave. During her employment, the complainant has had four children and there were no problems on the previous three occasions. The complainant agreed that this was the case.
For the respondent, Ms Daly said that the issues raised by the complainant in relation to hours of work and payment of wages are normal day-to-day grievances that could have been resolved between the complainant and her managers or with the involvement of the HR department. The complainant has worked with the respondent for more than 15 years and she has raised issues and made suggestions in the past always got a response.
It is the respondent’s case that the complainant has failed to set out the primary facts which show that she was discriminated against because she was pregnant. They also argue that she has failed to identify a comparator to demonstrate that she has been treated differently because she was pregnant. In her submission, Ms Daly presented a number of case law precedents to support the respondent’s position, and I have taken account of these in my findings on this matter.
Findings and Conclusions:
The Burden of Proof
The Equality Act 2004 inserts a new section, 85A, into the Employment Equality Acts 1998 – 2015.
“85A – (1) 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.”
The effect of this section in the law is to place the burden of proof in the first instance on a complainant, to establish facts, which, on an initial examination lead to a presumption that discrimination has occurred. Referred to as “prima facie” evidence, in the context of this adjudication hearing, the onus is on the complainant to show that, based on the primary facts, she has been treated less favourably than someone of a different gender, or someone who was not pregnant.
The Primary Facts
It is apparent that, the complainant was unable to do her normal job due to an injury. While she returned to work to do light duties, in the summer of 2018, there was less business than at other times of the year and all the therapists had their hours reduced. For about three weeks, the complainant’s hours were reduced from 22.5 hours per week to 6.5 hours. When she submitted a medical certificate confirming that she was fit to return to her normal job, her hours were reinstated.
The complainant says that she was left short of half an hour’s pay in week 23 of 2018, which was the week of the June public holiday. She worked for 6.5 hours Sunday of that weekend, and on the public holiday Monday, she also worked 6.5 hours. Her payslip that was produced in evidence shows that she was paid for 12.5 hours instead of 13 hours.
The complainant’s payslip shows that she was also paid for eight hours, as her entitlement to public holiday pay. If we assume that she was paid for 6.5 hours’ work on Sunday and that, due to the shortfall, she was only paid for six hours on Monday, this means that she received 14 hours’ pay for working for 6.5 hours on the public holiday. In accordance with section 21 of the Organisation of Working Time Act 1997, she was entitled to be paid double time. She should have received 13 hours’ pay for the public holiday, but she received 14 hours’ pay. I find therefore that there was no shortfall in the complainant’s wages in respect of the hours that she worked over the public holiday in June 2018.
At the hearing, the complainant said that, on three occasions, July 2nd and September 4th and 17th, she was left short of wages. These were days on which she attended hospital appointments. The respondents received notification of this complaint on November 6th 2018. This was the first time that the company was notified that the complainant had a grievance about her wages. At the hearing, the HR manager confirmed that on January 4th 2019, the complainant was paid for 12 hours in respect of the non-payment of wages for four hours on July 2nd and September 4th and 17th 2018. At the end of the hearing, there was some confusion about whether the complainant was paid for the hours she worked on July 2nd, and the HR manager said that she would review this and let the complainant know if there was any remaining shortfall.
It is my view that the wages issues raised by the complainant were basic grievances that could have been easily resolved if she had communicated with the HR or payroll department at the time. The notes of the meeting that took place with the complainant and her area manager on July 15th 2018 was submitted in evidence and address the reduced hours issue. The area manager sent this e mail to the complainant which they both agreed was an accurate record of their discussion. In the mail, the area manager referred to the reduced hours:
“The hours reduction is across the group as I actively showed you on our system and again this is just temporary. I did explain to you that by no means were (name of clinic) trying to get rid of you – these were your words – as we respect and genuinely love you and your experience and what you bring to the brand – when you tried to leave the last time we did everything in our power to keep you, you are part of the family and not just a number.”
Following this meeting, the complainant returned to working her normal hours. It is difficult therefore, to attribute the proposed reduction in her hours as a discriminatory act.
The respondent is an employer with most female employees. If they were to have issues with their employees being pregnant, they would not survive in business. The matters referred to by the complainant as discriminatory acts are grievances that could have been resolved without recourse to the WRC. It is clear to me that the complainant is regarded as a competent, revenue-generating employee and the company does not want her to leave, as she has suggested.
Having considered the evidence submitted at the hearing, I have concluded that the complainant has failed to establish facts which lead me to assume that she was discriminated against because she was pregnant. As a result, she has failed to meet the burden of proof required to establish her claim of discrimination on the gender ground in relation to her pregnancy. I find that her complaint on the ground of family status is misconceived and that her intention was to complain about discrimination only in relation to pregnancy.
Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.
I have concluded that the complainant had not established the primary facts which show that she was discriminated against on the ground of her gender. I have decided therefore, that this complaint is not upheld.
Dated: 25 March 2019
Workplace Relations Commission Adjudication Officer: Catherine Byrne