Complainant

Respondent

Parties

Karen  Doyle

Rushway Limited T/A Salmon Leap

Complainant

Respondent

Anonymised Parties

Representatives

Michael O’ Doherty B.L. instructed by  Landers Setanta Solicitors

Declan Harmon, B.L. instructed by  O'Regan Little Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 18 of the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012

CA-00041841-003

07/01/2021

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00041841-005

07/01/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00041841-006

07/01/2021

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00041841-007

07/01/2021

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00041841-008

07/01/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00041841-009

07/01/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00043012-001

11/03/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00043012-002

11/03/2021

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 18 of the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012

CA-00043012-003

11/03/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00043012-005

11/03/2021

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00043012-006

11/03/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00043012-007

11/03/2021

This matter was heard by way of remote hearing on the first hearing date pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. No. 359/2020 which designates the WRC as a body empowered to hold remote hearings.  Thereafter the hearings were in-person in Lansdowne House.

The complainant withdrew complaints CA–00041841-003, CA-00041841-008 and CA-00043012-003, CA-00043012-005 and CA-00043012-007, noting that they were either not being pursued or were duplicate claims.

The following complaints were not pursued by the complainant in oral or written evidence: CA–00041841-005, CA–00041841-009.  Complaint CA-00043012-006 was also determined to be a duplicate complaint following oral evidence.

Accordingly, only CA–00041841-006, CA–00041841-007, CA-00043012-001, CA-00043012-002 were pursued.

The respondent confirmed that the complaint regarding the Terms and Conditions of Employment (CA-00041841-006) was not disputed and accepted that a contravention of the Act took place.

The complainant submitted that she was pursuing five limbs to her complaint – discriminatory treatment including dismissal on grounds of pregnancy, discriminatory treatment on grounds of family status, harassment on grounds of pregnancy, not being paid holiday pay and not receiving a contract of employment.

The complainant noted that there was a denial of the dismissal by the respondent and invited the adjudicator to draw an inference of dismissal from 14 Sept 2020.  It was noted that there was a prima facie case that the dismissal occurred and that there was no contract of employment.  It was noted that the respondent did not inform her in advance that her employment was at risk nor was she afforded the opportunity to appeal the dismissal. The complainant submitted that she has been replaced by a person who has a different family status.

The complainant submitted that she started work for the respondent in and around June 2019 as the Sales and Marketing Manager covering two locations.  The complainant submitted that she requested a copy of her contract of employment on a number of occasions from the respondent.  The complainant submitted that she was not provided with payslips from October 2019 until she was forced to request them in order to apply for a credit union loan. In January 2020 the complainant received three payslips for the month January 2020 but received no more from that date forward.

The complainant submitted that she was responsible for all marketing functions within the two locations such as managing online media and advertising, coordinating sales and networking as well as slotting into other roles from time to time as business needs demanded. Between commencing her role in June 2019 and mid-March 2020 the popularity and reach through intensive social media engagement, resulted in significantly increased footfall and sold-out events. The complainant submitted that the respondent was happy with her work and no issue was ever raised with the quality of her work by the respondent.

The complainant submitted that due to the impact of the Covid 19 restrictions in the State, on 13 March 2020, she was laid off and instructed to apply for the Pandemic Unemployment Payment (PUP).  During the first few weeks of the nationwide restrictions the complainant continued to carry out her role from home, regularly posting on social media and took responsibility for confirming and dealing with all event and tour booking cancellations resulting from the mandatory closure of the businesses.

Over the course of the period of her lay off, when the venues were under mandatory closure, during June, the complainant was asked to help out by the assisting generally. Towards the end of June when it became clear that restaurants and pubs would be allowed to reopen, the complainant assisted with the reopening of the two premises and handled the marketing on social media as well as organising new artwork.  The complainant submitted that from around 29 June she noticed a marked increase in the work she was being asked to perform work by the restaurant manager of the one of the locations.

The complainant submitted that as both premises were now open to the public and, where her workload had increased, she was contacted and asked her to assist with menu design, road signage, the digital menu, updating the website, as well as all of the relevant marketing and promotion to get the venture up and running.   Although she was in receipt of the PUP, she was not particularly comfortable with the situation but felt that she had no alternative and had agreed to work in the manner requested.

The complainant submitted that on 24 July she attended at the workplace to drop off marketing materials including posters and recalled that everyone there was in good form and talking about their weekend plans. In conversation with her colleagues the complainant informed them of her pregnancy.  Thereafter, the complainant noted a marked change in the attitude of the respondent.

The complainant noted that the outdoor eating venue was very successful even to the extent that there was very limited availability for bookings each weekend. At this point it became known to the complainant that the respondent had taken on a lot of new staff and lots of ‘new starter’ forms had been sent out in that regard.

The complainant submitted that the respondent operated a WhatsApp managers group of which the complainant had been a member. She would use the group to let the other managers know about upcoming sporting events and to ask whether or not they wanted any events promoted. In and around September 2020 it became apparent to the complainant that the other managers had stopped responding to her. The complainant subsequently discovered that she had been removed from the group.

The complainant submitted that on 11 September, having become very concerned about her position, she met with the manager of one of the locations and asked if he knew if she had done something wrong. She was informed that she had done nothing wrong but that he had been instructed to stop communicating with her. The complainant was both upset and confused and later that week heard from another staff member that ‘she was gone’.

On 14 September, she met with the owner to discuss her position going forward.  He asked her when the baby was due, and she confirmed that the baby was due in January. She noted that being pregnant would not affect her work. The complainant indicated that she informed the only that she could work three days per week and that it wouldn't cost much at all as she could be paid through the wage subsidy scheme. She also mentioned that she could take a pay cut. She submitted that the owner ignored all of her suggestions and informed her that there was going to be big changes happening around here.

The complainant submitted that she became increasingly stressed and desperate and suggested that she could work behind the bar or on the floor.  The complainant submitted that the owner was not listening to her suggestions at all and ended the meeting abruptly indicating that if he needed anything from her, he would be in touch.

The complainant submitted that on 16 September 2020 she received a text message from one of the managers asking if she had finished up but advised him that she had not.  She learned that the respondent had replaced her with another employee, and that a further employee, had been engaged in doing posters and photography for both locations.

The complainant submitted that on 5 October 2020 she was notified by automated emails that the passwords of the social media accounts that she had managed had been changed. The complainant also received an email seeking the respondent’s laptop and camera.  She also submitted that on that date a client of the respondent contacted her noting that she had been informed that the complainant had left the respondent company.

The complainant submitted that there followed a series of interactions with former colleagues and former clients indicating that she was no longer an employee of the respondent and on 30 October 2020 returned items requested by the respondent as she felt she had no alternative but to do so.

The complainant submitted that the European Court of Justice has categorically confirmed that as pregnancy is a uniquely female condition any less favourable treatment on grounds of pregnancy constitutes direct discrimination on the ground of gender and noted Case C-177/88 Dekker v Stichting Vormingscentrum voor Jong Volwassenen (VJV-Centrum) [1990] ECR 1-3941.Since Dekker protection afforded to pregnant women in employment has been strengthened considerably in the case law of the CJEU and in the legislative provisions of the European Union. Equality on grounds of gender is now expressly guaranteed by Article 23 of the Charter of Fundamental Rights of the European Union. The Charter has been incorporated in the Treaty on the Functioning of the European Union (the Lisbon Treaty) is therefore properly regarded as part of the primary legislation of the European Union.

The complainant submitted that Directive 2006/54/EC (Recast Directive) provides, at Article 2.2 (c), that any less favourable treatment of a woman related to pregnancy or maternity leave within the meaning of Directive 92/85/EEC constitutes unlawful discrimination for the purpose of that Directive. The complainant noted that in Case 406/06 Paquay v Société d'architectes Hoet + Minne SPRL, the Court pointed out that prohibition of less favourable treatment on grounds of pregnancy comes within the ambit of both the Equal Treatment Directive and the Pregnancy Directive and in doing so emphasised the importance of providing real and effective redress in cases where the rights of pregnant workers are infringed. The complainant noted that the Court confirmed that:

“the objective is to arrive at real equality of opportunity and cannot therefore be attained in the absence of measures appropriate to restore such equality when it has not been observed. Those measures must guarantee real and effective judicial protection and have a real deterrent effect on the employer”.

“Such requirements necessarily entail that the particular circumstances of each breach of the principle of equal treatment should be taken into account. Where financial compensation is the measure adopted in order to achieve the objective previously indicated, it must be adequate, in that it must enable the loss and damage actually sustained as a result of the discriminatory dismissal to be made good in full in accordance with the applicable national rules”

“It is necessary to recall that, in accordance with Article 12 of Directive 92/85, Member States are also bound to take the necessary measures to enable all workers who consider themselves wronged by failure to comply with the obligations arising from that directive, including those arising from its Article 10, to pursue their claims by judicial process. Article 10(3) of Directive 92/85 specifically states that Member States shall take the necessary measures to protect pregnant workers or those who have recently given birth or are breastfeeding from the consequences of dismissal which is unlawful by virtue of Article 6 of Directive. 

“… while recognising that Member States are not bound under Article 6 of Directive 76/207 or Article 12 of Directive 92/85, to adopt a specific measure, nevertheless the fact remains, as is clear from paragraph 45 of the present judgment, that the measure chosen must be such as to ensure effective and efficient legal protection, must have a genuine dissuasive effect with regard to the employer and must be commensurate with the injury suffered.”

The complainant submitted that it is well settled law that pregnant women enjoy specific protections throughout the course of pregnancy, maternity leave and beyond and that any attempt to infringe those rights should be met with strict opposition and penalty and noted that Section 6(2A) of the Employment Equality Acts states:

“Without prejudice to the generality of subsections (1) and (2), discrimination on the gender ground shall be taken to occur where, on a ground related to her pregnancy or maternity leave, a woman employee is treated, contrary to any statutory requirement, less favourably than another employee is, has been or would be treated”

The complainant contended that upon informing the respondent that she was pregnant her working situation changed drastically to the point where she was summarily dismissed. It was submitted that the callous actions of the respondent post 14 September 2020 compound the discriminatory dismissal and in fact emphasised the respondent’s dereliction of duty and ignorance of its obligations pursuant to the Employment Equality Acts. The complainant submitted that the factual scenario and timeline could not be starker. It was submitted that the respondent was keen for the complainant to return to work following the lifting of restrictions in the State and involved her in plans for new initiatives for the businesses in that regard. However as soon as it became known that she was pregnant the respondent had “no marketing work” for her.

The complainant submitted that the burden of proof has been established in relation to this complaint citing section 85A of the Act and noting the decision in Southern Health Board V Mitchell where the Labour Court determined that “the first requirement is that the claimant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the brief facts on which they rely in seeking to raise a presumption of unlawful discrimination …”

The complainant also cited the cases of Cork City Council v McCarthy EDA0821, Trailer Care Holdings Ltd. v Healy EDA128, and Croc’s Hair and Beauty v Helen Ahearn EDA195 in support of the contention that it has established the burden of proof in relation to the complaint.

The complainant submitted that it is well settled law that the complainant does not need to show a comparator.

The complainant submitted that she specifically referred to her other pregnancies in her conversations with the owner and cited the case of O'Brien v Persian Properties trading as O'Callaghan Hotels [2012] 23 E.L.R. 211 and noted that in that case, the equality officer was satisfied that a dismissal during her pregnancy which followed the harassment, was connected to her family status.  The complainant submitted that she was replaced by one or two individuals who did not have children and that these are valid comparators in the circumstance.

In regard to the harassment complaint, the complainant submitted that she was subject to a statement that would never have been said to a man. It was also submitted that as the comment was made in close proximity to the time when she was ultimately dismissed there is a clear connection between the incident and discrimination on grounds of gender and the family status.

The complainant submitted that the level of compensation to be awarded in cases of this nature should “guarantee real and effective judicial protection and have a real deterrent effect on the employer” as per the Paquay case (Case 406/06).

Complainant testimony:

The complainant outlined her position with the respondent providing marketing services in respect of the two premises, aimed at bringing in tour operator groups.  She noted that she was laid off in March 2020 and applied for the pandemic unemployment payment. She noted that she didn't cease working as bookings needed to be cancelled and that she was still working from home. She noted that there were emails still coming in and that as it was her job, she kept doing it. She was contacted by the owner and various times to assist in providing help for homeless people and to help with the ‘horsebox’ venture. She stated that she met the owner in July for a chat about the possibility of going on to the payroll again and it was mentioned that this might be at the end of August. He noted that she was being paid in cash and was doing 25 to 30 hours while being on the PUP.  She said she notified the respondent of her pregnancy in an e-mail of 23 July seeking her outstanding monies. She noted that she also told colleagues that she was pregnant and the comments “drinking days are over for a while" and “glutton for punishment” were used.

The complainant stated that in September 2020 events were starting to come back and that she was due to meet with the respondent as there was some talk about possible pay cuts. During this conversation she was asked when her due date was, and it was noted that there was no marketing work for her.  She said that she noted that they were short of a Barmen and that there was plenty of work to do if there was no marketing work available.  She felt that she was out of a job and that he didn't want her there. Shortly afterwards, about two days later she was asked by text message whether she had gone. She also noted that all the passwords were changed from that date onwards.

The witness noted that although the passwords were changed on a number of accounts, but she still had access to the e-mail account on her phone and noted that in October 2020, she was not included on the employee list. She also noted that she was gradually being removed from all the social media that she had previously managed. She said she was removed as administrator and replaced by two named colleagues. 

The witness noted that she applied for 50 plus jobs since her dismissal and was shortlisted and interviewed for some of them.

Under cross examination it was put to her that she was put on the PUP and that there was no marketing need. The complainant disagreed with this suggestion. It was put to her that the 16 July meeting never happened, however the complainant was clear that the meeting did happen. It was also put to her that the 24 July meeting did not happen, however the witness noted that she was completely clear about that meeting too. It was put to her that the MD only learned of her pregnancy after the fact, but the complainant said that this could not be true. It was put to her that one of the witnesses will say that the pregnancy was not mentioned until after 24 July to the owner of the company.

It was put to the witness that the 14 September meeting never took place as she described it, or at all but she responded that she was crystal clear that it took place.

The respondent put it to the complainant that the meeting that was alleged to have taken on 24 July was in an office that was so small no meeting could have taken place there.

The complainant noted that someone is employed to do the work that she was employed to do.  She noted that two named witnesses, one of whom is doing menus and the other was updating the website.

It was put to the complainant that the list of employees that she saw refers to employees’ clock-in details and as she was salaried, she was not on that list. The complainant conceded that there may have been a clock-in system and that the list may have related to that system.

The respondent submitted that Rushway Limited was the correct respondent in relation to these proceedings.  The respondent accepted that there was a breach of the Terms of Employment (Information) Act.

The respondent submitted that it has two premises, and that the complainant’s employment began in 2019. Her role was primarily to market the two premises with a view to generating bookings for large groups and events. She also had a role in marketing the premises online and on social media. Owing to the COVID-19 pandemic both premises operated by the respondent were closed for long periods from March 2020 onwards. Initially all staff in both premises were laid off and took up receipt of the pandemic unemployment payment. As some business activity was permitted to return during the course of 2020, some staff resumed working for the respondent as business requirements demanded.

The respondent submitted that given that events and large group bookings were not permitted at that time, the complainant was not one of the staff who returned to work as there was no business demand for her role at that time. She did perform certain work on an occasional basis during the period and was paid as and when that work was performed.  It submitted that the focus of business throughout 2020 was one of survival in an uncertain environment.  It was noted that although the business did enjoy some busy periods during the year, it was punctuated by long periods of severely disrupted trading.

Employment Equality complaints:

The respondent refuted the allegations that it discriminated against the complainant.  The respondent submitted that the principal of the company is personally aggrieved and distressed that it would be suggested that he discriminated against a person on the basis of pregnancy.

The respondent submitted that it appears from the complainant’s submission that the allegations of discriminatory treatment relate to the period between an alleged meeting on 24 July 2020 and a further alleged meeting on 14 September 2020.   The managing director for the respondent was not present at the meeting of 24 July and only learned of the complainant's pregnancy sometime after that from his brother and another employee, the manager of one of the premises. The respondent submitted that the manager would confirm in evidence that this was the case.

The respondent disputes that any decision was taken to stop communicating with the complainant through a WhatsApp group or that any directive was issued to stop communicating with the complainant. The respondent refuted the suggestion that the complainant was dismissed from her employment and noted that the complainant was laid off as a result of Covid-19 restrictions and was in receipt of the pandemic unemployment payment. It was always the intention that she would return to her previous position once business conditions permitted. It was submitted that the reality was that group bookings and events were completely out of the question during the period therefore complainants role remained in abeyance due to the Covid-19 regulations.

The respondent acknowledged that certain limited activity previously performed by the complainant was taken on by other staff members pending the complainant's return but submitted that this did not amount to a replacement of her role. This activity was limited to social media activity and basic tasks like designing menus. The respondent submitted that the changing of passwords and administrators and social media accounts must be seen in this context. The respondent submitted that the request to return equipment should also be seen in a similar light and was requested for business reasons.

Redundancy issue:

The respondent denied that the dismissal occurred but noted that if it did occur on 14 September 2020 as alleged, any such dismissal would not have given rise to a redundancy payment as the complainant was not employed for the requisite timeframe provided for in the legislation.  The respondent noted that the complainant was laid off due to the effects of Covid-19 and the layoff was provided for in section 12A of the legislation. Accordingly, section 12 does not have any effect.

Minimum notice:

The respondent submitted that the complainant was laid off due to the Covid-19 pandemic and submitted that no matters arise pursuant to the minimum notice terms of employment act.

Respondent witness testimony:

The respondent's first witness was the Managing Director (MD) of the business.  He noted that his businesses revolved around hospitality and that a number of them had closed but not reopened. He noted that the complainant started to work with the respondent in or around May or June of 2019. She had previously worked with his sister-in-law, and he was seeking a marketing executive to deal with tour groups. He noted that everything stopped with Covid-19. He stated that he was satisfied with the complainant's work but with the massive impact of Covid, everything closed around Saint Patrick’s Day of 2020. He noted that they reopened but with restrictions and that they couldn't do what they had hoped to do.  He noted that he had 70 to 90 staff pre Covid and that he never had an issue with pregnant employees, stating that he works with everybody and wouldn't discriminate against anybody.

The witness outlined the trading restrictions imposed upon everybody and noted that people were signed in and only allowed to remain for a certain amount of time and that the guards could arrive at any time.  He stated that he couldn't promote anything, no music or anything. He said he had four venues but that two haven't reopened since. He noted that the complainant's evidence was that things changed on his part, but he had no reason to change his attitude.

As regards the meeting of 24 July 2020, he has no recall of the meeting but noted that the office is too small to have a meeting. It was noted that complainant’s evidence is that there was banter regarding her pregnancy, but he has no recollection of the meeting and only found out that she was pregnant in August. He noted that he would have no reason to change his attitude to her.

As regards the complainant's evidence of a meeting of the 14th of September he recalls a meeting but not the date. He has no recall of a conversation revolving around when are you due, or when was the due date but simply that the conversation was around Covid, and the limitations imposed upon the retail and hospitality sectors.  He stated that she was not dismissed but that there was simply nothing to promote.  He stated that the first he knew of alleged dismissal was following the receipt of a solicitor’s letter in November 2020. As regards the complainant’s evidence that various parts of the work was being done by others, he stated that this was only a waitress posting menus and not a marketing function. He noted that this was different, serving food and putting it on social media. He noted that the complainant's role was organising groups and parties and that this is still not being done as two of the event venues are still not open.

Under cross examination it was put to him that there were three meetings 16 July, 24 July and 14 September. He denied that the 16 July meeting took place. He noted that all staff were put on temporary layoff in March 2020 but confirmed that he asked her to work from home. He confirmed that he paid her in cash for the work and this continued up to August 2020 but was very minimal. He confirmed he was not thinking about any illegality but was simply trying to keep his businesses going. The witness said it was always his intention to return post-restrictions and he never communicated anything as it was all too uncertain. All his staff were laid off, he wouldn't have been able to tell the complainant that she was coming back due to the restrictions in place at the time.  He stated that only waitresses and barmen were coming back and there was no marketing needed. He noted that upon reopening the business, it was up by 70% but that the complainant's role was marketing and was not a pub role.

It was put to the witness that he was on notice of her pregnancy because she had emailed him a prenatal appointment in July. He stated that he wasn't aware of it.  The witness stated that he didn't think that the complainant wanted to come back to work, and it was put to him that the complainant's evidence was the exact opposite. He stated that as regards the discussion of pregnancy on 24 July and 14th of September neither meeting took place. The witness denied asking the complainant when the baby was due.

He stated that nobody in the hospitality sector knew what was happening. He denied that the complainant offered to take reduced hours and a pay cut. He stated that he couldn't give a role of a barman or waitress to the complainant as he already had staff for those roles. He said there was no receptionist role available in the premises. He stated that he's not denying that the conversation took place, but he can't recall it as there were people already on salary for those roles.

It was put to him that at the meeting of 24 July it was obvious the complainant was pregnant. He stated that in the middle of August he had to be told that she was pregnant and noted that he gets hundreds of emails per day and wouldn't necessarily be able to follow them all and so was unaware prior to that.  The witness noted that the complainant is usually paid by one of his managers and he would not necessarily be at a meeting where she would be paid.

When the witness was asked about removing the complainant from WhatsApp groups, he said that he didn't want to be bombarding people with text messages while they were not working.  When asked why he suddenly decided this in October he stated he was not told she was pregnant. When asked about the meeting in September he said that perhaps he met with her but not to discuss her pregnancy.

It was put to the witness that he heard the evidence that the complainant believed she was let go, the witness responded that the employee list simply included people who clocked in on one site. However, the complainant may be working anywhere and so was not on the list, he explained that employees were not removed.  As regards the dispersal of small jobs to other staff members, the witness noted that waitresses would post menus and the like, and that this was not the complainant's job. He noted that what the complainant was working on was against the law and it couldn't continue.  He noted that it was very minimal and there was not enough in it to continue with employment for her. It was put to the witness that when he received the solicitor's letter regarding the dismissal, he didn't even attempt to contact the complainant. He responded that there was no reason for the dismissal and those meetings didn't take place.

Under redirection the witness outlined that the role of the complainant was related to marketing for groups and putting stuff up on social media. He clarified that not much of her job related to putting things up on social media. He clarified that he didn't recall seeing the e-mail of the 23rd of July outlining her prenatal appointment. He noted that what little work was available was redistributed across other staff but that they had not reopened. The witness noted that the only reason there was no work for the complainant was down to Covid.

The second witness for the respondent was a former employee who worked there from 2016 to 2019. She outlined that she had given birth to two children and took maternity leave for both.  She noted that her role was as a receptionist and that the respondent was fine when she came back and she was able to change shifts to facilitate childcare.  When asked why she stopped work she said that she left before she had her second baby and that she had another business where she was self-employed. She was also asked to do some part time work after leaving.

Under cross examination she confirmed that she had no direct engagement with the MD but instead dealt with his brother when dealing with the respondent.

The third witness for the respondent with employed doing administrative work since August 2020. She stated that she met the complainant in August who told her that she was pregnant but mentioned that she hadn't told the owners yet.  The witness stated that she replied, “I thought you were but I didn't want to say it”. Under cross examination she confirmed that she was working with the complainant and did not have any other conversations about the pregnancy.

The fourth witness was the manager of one of the venues. He worked with the MD and confirmed that “he wouldn't still be there if he didn't get on with him”.  He noted that the MD works ‘with you rather than above you’. He confirmed that he knew the complainant through work.

The witness confirmed that the complainant would have had a lot of contacts with tour groups noting that she was good with people. He noted that he wouldn't have seen her every day but would have asked her for help with computers as he was not very good with them. He noted that she was always flat out looking for groups to close business with.

The witness confirmed that Covid closed down the business for three months and during that time they built courtyard horse boxes and tenting for eating outside. He noted that they were busy but sporadically busy but not numerically at the same level as previously. He noted that the police were checking it out constantly.  He noted that there was a lot of work over and above the usual work that had to be done but that the complainant's work was not permissible at that time.

The witness confirmed that the complainant's job was not just taking pictures but was much bigger than that. He noted that he used to use the clock-in system but as he was travelling between venues he doesn't use it any more. He said the clock in system was restricted to staff working on the premises as it isn’t a workable option for staff based at home.

As regards the meeting of 24 July 2020 it took place in his office, and he referred to a photograph of the office submitted in evidence.  He said it was like a small prefab, but it wouldn't fit three people for a meeting. He confirmed that the MD was not at the meeting. He said that the complainant was due to pick up money she was owed and noted that the office wasn't big enough to have somebody sitting on the seat.  He confirmed that she informed him of the pregnancy at that meeting as she rubbed her tummy, and he said congratulations to her and accordingly he was aware of the pregnancy. He noted that he didn't tell anyone that she was pregnant and about fortnight later heard that she had told others that she was pregnant and mentioned that his boss was aware of the pregnancy at that point.

The witness was asked whether anyone told him to ignore the complainant or discriminate against her and he said there was no change in his attitude toward the complainant after he heard she was pregnant. In relation to the complainant’s role, he noted that because there were regular police inspections, they had to turn customers away and if they were turning people away “why would they have engaged someone to encourage people to come”. He confirmed that the complainant did not receive a contract of employment initially.

Under cross examination he confirmed that that the address was not on anyone's contract he confirmed that the complainant worked flat out and was a great front person for the company. He noted that the MD was an old school type person, a phone person rather than using emails.

The witness confirmed that he didn't tell anyone that she was pregnant but noted that the world was different when the complainant was originally employed to when Covid.

The fifth witness was working briefly as a server for the respondent and noted that she had no complaints and was able to switch shifts as necessary to enable fitting in appointments and childcare.

CA–00041841-005, Redundancy Payments Act

This complaint was not pursued in either written or oral submissions beyond mere reference to the Act.   

CA–00041841-006 Terms of Employment (Information) Act

This complaint was accepted by the respondent, and I am satisfied that the complaint is well founded. I consider that compensation amounting to two weeks remuneration is just and equitable in all the circumstances of this complaint.  As the complainant’s weekly wages amounted to €961.54, the amount of compensation is €1923.08

CA–00041841-007 Minimum Notice & Terms of Employment Act

As noted below, the complainant was dismissed.  She did not receive any notice and I find that the Act has been contravened.  It was submitted in written submissions that she was employed with the respondent for less than two years.  I find that he she was entitled to one weeks’ notice and that the Act was contravened.  Accordingly, she is entitled to compensation equivalent to one week’s notice, i.e., €961.54.

CA–00041841-009 Organisation of Working Time Act

This complaint was not pursued in either written or oral submissions beyond mere reference to the Act.  Arising from this, I find that the complaint is not well founded.

Complaints under the Employment Equality Act

The complainant’s case is that she was dismissed on 14 September 2020 and that thereafter the functions she undertook were given two other staff members to do. She was also told to hand in her computer and to give over her passwords to enable others to do the work she had previously done. The respondent denies that any dismissal took place and submitted that on the basis of Covid there was a business requirement and no possibility to organise events. The complainants’ services were not needed on a temporary basis, and it was always the respondent's intention that there should be a return to work.

The respondent suggested that there is a stark factual dispute regarding the two meetings that took place and noted that recollections can differ.

In closing submissions, the parties agreed on the law that is applicable in this case. They agreed that no comparator had to be brought forward in relation to pregnancy related dismissal and they agreed that a prima facie case must be established. They disagreed as to whether the prima facie case was established.

The complainant noted that from the time the workload picked up when the public started their return to hospitality locations, the complainant was removed incrementally from her role, which was inversely proportional to the workload. The complainant submitted that her job spec was not in relation to group bookings but was marketing manager with a wide range of tasks. It was noted that the complainant was a huge asset to the company and should have been used more not less. The complainant outlined that it was suggested that she made-up three meetings and the central issue here is one of credibility.  The complainant had a clear memory of the three meetings and the respondent witness cannot be trusted he made cash payments and portrayed her as making up things, however he has no recall of any meetings whatsoever. It was noted that he shifted his position, his evidence was that he didn't read the e-mail but it is evident from an e-mail sent from his account that he used his e-mail account regularly.  The complainant argued that despite insisting on his nonattendance at meetings, he did not offer anything to show that he was elsewhere. Additionally, the complainant argued that the case hinges on the fact of a dismissal and the complainant argues that she was dismissed, and she was systematically removed from her duties, but nobody had the good grace to tell her.

The respondent noted that the complainant must prove facts must establish a presumption of discrimination and noted that in her evidence she said she felt like her job was gone and she felt that the reason was pregnancy, however it argued that this falls some way short of establishing facts of discrimination; a feeling does not amount to a fact. The respondent is not disputing that the feeling was genuinely held but that is not sufficient to establish discrimination and accordingly the complainant has not got over the hurdle outlined in Section 85A of the Act.

The respondent suggested that if the burden does shift that the circumstances indicate the reality of the situation. Firstly, the Covid pandemic had a huge effect on the economy and society but particularly on the hospitality industry, they were the first affected with the last released from the impacts of covid. The second circumstance is that the nature of the complainant’s work was dealing with large group bookings and tour groups - exactly the events that were made impossible at the time of the pandemic. Thirdly, the complainant was in a management position reporting directly to the owner and was on a respectable salary, she was not a junior and the suggestion that her role could be reduced to the social apps is not possible. The respondent argued that the great bulk of her role did not exist as the work had not come back; the work was very different to the previous type of work in that people continued to be turned away. The final factor put forward by the respondent is that it is not in the nature of the MD to have discriminated against a person who is pregnant, and that evidence was provided that he was a considerate employer.

The respondent noted that the dismissal in this case was in dispute and noted that it was the respondent’s intention to bring back the complainant once trading and public health conditions allowed. He was surprised to get a letter regarding her dismissal, her performance was not in dispute, her quality and fit in the organisation was not in dispute.  None of this points to the fact of a dismissal. It was noted that the employer was not perfect but was simply trying to keep business afloat.

CA-00043012-001 Employment Equality Act – Dismissal on the Family Status and Gender grounds

Although the option of family status was indicated on the form, the brief narrative accompanying the original complaint indicates that the dismissal complaint relates to a pregnancy-related dismissal.   Accordingly, I am considering the dismissal under family status and gender grounds.

At the heart of this case is the issue of whether a dismissal took place and whether that dismissal was discriminatory based on gender and family status. As regards family status the only issue brought before me was that the work being done by the complainant previously was now done by two waitresses who it appears did not have children – although no evidence of their family status was adduced in the case.  No nexus was presented between the dismissal and the family status ground.

Section 85A of the Act requires a complainant to establish facts from which discrimination may be inferred in relation to her.  It states as follows:

“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.”

On the basis of the evidence provided by the complainant, I am not satisfied that she has established facts from which discrimination on the family status ground may be inferred.  Accordingly, I find that complainant was not discriminated against on the basis of family status.

In relation to the issue of discriminatory dismissal on the basis of gender, although there is dispute between the parties as to the three meetings that occurred, who was present and what was said, it has been established that the respondent was aware that the complainant was pregnant, perhaps as early as July, but certainly by August 2020. The manager of one of the locations confirmed that he knew about the pregnancy, and although there is no dispute that an e-mail was sent regarding a prenatal appointment in July 2020, the only dispute is whether the intended recipient read the e-mail or not at that point. He confirmed to being aware of her pregnancy in August but also indicated that he only learned about her pregnancy in September.

The respondent was certainly aware of the pregnancy when it reduced the workload that she had been carrying out for the respondent.  She had carried out these duties throughout the pandemic on a cash in hand basis despite being in receipt of the pandemic unemployment payment. The respondent was certainly aware of the pregnancy when the complainant was asked for the various passwords to social media and certainly aware of the complainant’s pregnancy when she was asked for the return of the laptop, etc.

The respondent’s assertion that the laptop and passwords were needed for somebody else to undertake the duties that the complainant had been undertaking, but that she was not dismissed, does not make sense when the complainant was also removed from the WhatsApp group and as administrator of other social media groups. The assertion that she was removed to stop her being inundated with messages does not make sense given that throughout the pandemic she had been left on those groups and paid on a cash in hand basis to undertake a certain amount of work

Having regard to all the foregoing, I am satisfied that the complainant has established that she was dismissed, and that the respondent was aware of her pregnancy at the time of her dismissal.  I am satisfied that she has established facts from which it may be inferred that she was discriminated against on the basis of gender. It now falls to the respondent to rebut the inference of discrimination raised by the complainant.

The respondent disputed that the complainant was dismissed when she claims to have been, or at all. Her remaining duties were removed from her, her social media administrator rights were removed from her, her social media passwords were removed from her and changed, and the respondent sought back any equipment she had been using during the pandemic.  In addition, when she sought to clarify her position within the respondent company by way of e-mail to the MD, she did not receive any reassurances nor reply indicating that she had not been dismissed. This all occurred in the full knowledge of the pregnancy.

The complainant cited the case of Nolan v Gino’s Italian Ice Cream Ltd (EDA2017).  The that case the Labour Court determined, amongst other things, the following:

“In the case of Croc’s Hair and Beauty v. Helen Ahern, ADE/16/58, this Court set out at some length its understanding of the legal protections for pregnant women. It is not necessary to re-state here the full text of the Court’s Determination in that case. It is sufficient to summarise this by referring to the fact that the then ECJ recognised in the Dekker case, to which the Complainant’s submission has referred, that, as pregnancy is a uniquely female condition, any less favourable treatment on grounds of pregnancy constitutes direct discrimination on grounds of gender.

This principle has been copper fastened by the recognition of equality on gender grounds in the Charter of Fundamental Rights of the European Union which was, in turn, incorporated into the Lisbon Treaty. The jurisprudential principle is set out in Directive 2006/54, which provides that any less favourable treatment of a woman related to pregnancy or to maternity leave constitutes unlawful discrimination.

In drawing on these sources and on relevant case law, this Court in the Croc’s case observed that the special protection afforded to women from the commencement of their pregnancy until the end of their maternity leave is to be regarded as a fundamental right and that where a pregnant woman is treated adversely because of her condition during this period, the employer bears the burden of proving, on cogent and credible evidence, that such treatment was in no sense related to her pregnancy.”

Having regard to the foregoing I am satisfied that the complainant was dismissed, and I am not satisfied that the respondent has rebutted the inference of discrimination raised, the employer has not demonstrated on cogent and credible evidence that the dismissal was in no sense related to her pregnancy.  I find the complainant was dismissed on the basis of her pregnancy. Accordingly, I find that the complainant was discriminated against in accordance with the Act.

As regards compensation the complainant noted that any compensation needed to provide a real and effective judicial protection for a pregnant employee. The respondent noted that any compensation should be for the effects of discrimination but disagreed that the award should be punitive and noted that there should be some regard to a business getting back on its feet.

In the Nolan v Gino’s Italian Ice Cream case, the Labour Court also determined the following:

“In assessing the level of compensation to be awarded, the Court has regard to the observations in the case of Case 406/06 Paquay v. Societe d’architectes Hoet +MinneSPRL (2007) ECR 1-8511 that the requirements of redress should ‘guarantee real and effective judicial protection and have a real deterrent effect on the employer’”.

The complainant’s salary amounted to €961.54 weekly; however, the complainant was on layoff and in receipt of the Pandemic Unemployment Payment at the time of her dismissal. Taking all the factors into account, I am satisfied that an award of €40,000 is appropriate in all the circumstances of this complaint.

CA-00043012-002 Employment Equality Act - Harassment on the family status ground.

As regards the complainant of harassment on the grounder ground, Section 14A(7)(a) and (b) of the Act defines what constitutes harassment.  It states as follows:

(a) In this section—

(i) references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds, and

(ii) references to sexual harassment are to any form of unwanted verbal, non-verbal or physical conduct of a sexual nature,

being conduct which in either case has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.

(b) Without prejudice to the generality of paragraph (a), such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material.

The complainant outlined that she was dismissed and although she gave evidence of banter with colleagues regarding her pregnancy, it took the form of congratulatory comment and noting that she wouldn’t be drinking or socialising for a while.  I am not satisfied that the comments amounted to unwanted conduct relation to the discriminatory grounds.

Having regard to the foregoing and to the written and oral evidence presented in the course of this hearing, I am not satisfied that the complainant has established facts from which harassment may be inferred.  Accordingly, I find that the complainant was not harassed in accordance with the Act.

CA–00041841-005, Redundancy Payments Act

This complaint was not pursued in either oral or written submissions.   My decision is therefore to disallow the complainant’s appeal.

CA–00041841-006 Terms of Employment (Information) Act

Having regard too all the written and oral evidence presented in relation to this matter, my decision is that the complaint is well founded, and I order the employer to pay the complainant compensation of €1,923.08 which I consider just and equitable having regard to all the circumstances.

CA–00041841-007 Minimum Notice & Terms of Employment Act

Having regard to all the written and oral evidence presented in relation to this complaint, my decision is that the Act was contravened.  I direct the respondent to pay the complainant compensation for the loss sustained equivalent to one week’s remuneration, that it €961.54.

CA–00041841-009 Organisation of Working Time Act

This complaint was not pursued in either oral or written submissions.   My decision is that the complaint is not well founded.

CA-00043012-001 Employment Equality Act (Dismissal)

Having regard to all the written and oral evidence presented in relation to this matter, my decision is that the complainant was dismissed and that this amounts to discrimination on the basis of her gender.  Taking all the factors into account, I am satisfied that an award to the complainant of €40,000 in compensation is appropriate in all the circumstances.

CA-00043012-002 Employment Equality Act (Harassment)

Having regard to all the written and oral evidence presented in relation to this matter, my decision is that the complainant has not established the existence of harassment on the basis of one of the protected grounds.

Redundancy Payments Act – not pursued – Terms of Employment (Information) Act – contravention accepted – compensation awarded – Organisation of Working Time Act – not well founded – Discriminatory Dismissal – established – award of compensation – Harassment – not established