Complainant

Respondent

Parties

Consultant

Consultancy Company

Representatives

Setanta Landers

Setanta Solicitors

Peter Murphy McInnes Dunne

Murphy LLP / Katherine McVeigh BL

Act

Complaint Reference No.

Date of Receipt

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

CA-00062479-001

28/03/2024

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

CA-00062479-002

28/03/2024

The Complainant's account:

The Complainant worked as an operational excellence consultant. Her contract of employment commenced on the 1st of September 2023. Her annual pay was €73,000. She was placed on site with a client, the client company.

The Complainant stated that she told her employer she was pregnant. She stated that before that, she was allowed to work from home. She stated that after she disclosed her pregnancy, this was refused. She stated that no pregnancy risk assessment was carried out. She stated that other office-based staff at the client company were still allowed to work from home.

The Complainant stated that on 25 January 2024 she was called to a meeting off site. She was handed a letter placing her on layoff. The layoff was unpaid and took effect immediately. She stated that she had not been referred to occupational health. She stated that no risk assessment had been done. She stated that she asked for the minutes of this meeting and that none were given to her.

The Complainant stated that a consultation process then began. She stated that it was framed as dealing with a risk of redundancy. There were three meetings: on 2 February, 9 February, and 1 March 2024.

The Complainant stated that at the first meeting she told her managing director that she was willing to look at other roles. She stated that she wanted to return to work. She stated that at the second meeting she was told no new role had been found for her. She stated that she was asked if she had any undisclosed qualifications. She stated that this meeting lasted about five minutes.

The Complainant stated that at the final meeting she was told no role would be available for months. She stated that her exit from the company was confirmed. She stated that she was first told she would get only her statutory minimum entitlements. She stated that the managing director then said they could do a little better than that.

The Complainant stated that the whole process had only one outcome from the start. She stated that she was on layoff for more than four weeks before being told she could treat her contract as terminated.

The Respondent's account:

The Respondent denies that it discriminated against the Complainant in any way.

The Respondent stated that the real reason the Complainant could no longer work at her placement was that her husband was dismissed by the client company, not her pregnancy. It stated that the claim that others were allowed to work remotely does not hold up, because the client company is a logistics company and requires staff to be on site.

The Respondent stated that the Complainant was always facilitated to attend medical appointments. It stated that she was also allowed to work from home when she was not feeling well. The Respondent stated that it was very aware of the need to be supportive and flexible during her pregnancy and stated that the client company took the same approach.

The Respondent stated that the texts and communications between the Complainant, the Respondent, and the client company will show a positive and supportive relationship. It stated that this changed not because of the pregnancy, but because of how the client company treated her partner.

The Respondent is a small consultancy. It stated that the Complainant was its first employee, and that it does not have a large client list to offer alternative roles. It stated that once the Complainant indicated she no longer wished to work at the client company, its choices for finding her an alternative position were limited.

The Respondent stated that the procedures it followed were to let the Complainant know that her role was at risk if the placement was no longer suitable. It stated that this arose because no other role with another client was available.

CA-00062479-001 (discriminatory dismissal)

The Complainant stated that she was laid off on 25 January 2024, when she raised a grievance that she was being discriminated against because she was pregnant, and her health was being compromised. She should have been sent to occupational health, or her employer should have had a risk assessment carried out. She stated that a consultation process followed not about her grievance but about her job being at risk, involving meetings on 2 February, 9 February, and 1 March 2024, which she stated was framed as addressing a risk of redundancy. She stated that at the first meeting she said she was willing to explore other roles and wanted to return to work. She stated that at the second meeting she was asked about undisclosed qualifications and told no alternative role had been found, and that this meeting lasted about five minutes. She stated that at the final meeting she was told no role was likely to become available and that her employment would end, initially on statutory minimum terms, later qualified by the managing director saying they could do a little better. She stated that the loss of her job put her residency status at risk, given her work authorisation depends on sponsorship requiring a minimum two-year contract, and that she found it difficult to secure other work while pregnant.

CA-00062479-002 (discrimination on family status/gender grounds)

The Complainant stated that she told the Chief Operations Officer of the client company and her Managing Director of her pregnancy in early December 2023. She stated that she was subjected to a discriminatory comment by the Senior Warehouse Coordinator of the client company in October 2023, that women over 30 should not have children. She stated that she requested a work from home arrangement on 17 December 2023, was refused at a meeting on 18 December 2023, and that she had previously worked from home and that other office-based staff at the client company continued to be allowed to. She stated that she developed pregnancy-related health issues, that her doctor advised against travel and recommended a month's sick leave from 21 December 2023, and that she informed the Managing Director of this by email on 22 December 2023. She stated that her husband was told on 12 January 2024 he could no longer adjust his breaks to drop her at the bus stop, that he wrote to the Respondent raising this on 15 January 2024, and that the Senior Warehouse Coordinator's email of 17 January 2024 indicated the request would likely not be granted. She stated that she then had to walk to the bus stop in poor weather, worsening her illness, while other staff were allowed to leave the premises for family reasons. She stated that she raised concerns about discriminatory and abusive treatment by email on 17 and 18 January 2024, that a meeting followed on 19 January 2024, and that she gave a GP letter on around 23 January 2024 warning of the impact of continued non-accommodation.

The Complainant's case is that she was subjected to less favourable treatment because of her pregnancy, including refusal of working from home, lack of a risk assessment, and the difficulties around her travel to and from work. She states that this treatment made her position intolerable. She alleges that the process which followed, framed around redundancy and assessing whether an alternative role existed for her, was contrived to hide the real reason for her dismissal, which she alleges was her pregnancy. She states that this process was not accompanied by any investigation of the discrimination and penalisation she says she had raised.

The Respondent stated that it is a small company running a BioPharma and Life Sciences consultancy, made up of the Managing Director and the other director of the Respondent. It stated that the Complainant was its only other employee and was employed solely to work on site for the client company, on an annual salary of €73,000.

The Respondent stated that the Complainant worked with the client company from July 2023 until her layoff on 25 January 2024. It stated that on 17 January 2024 the Complainant's husband, who worked for the client company, was dismissed by the client company, and that later that same day the Complainant emailed the Respondent for the first time alleging discriminatory treatment by the client company and asking to be moved from that placement. The Respondent stated that as the Complainant's role existed solely to work with the client company, and it had no other client to place her with, it was left with no option but to lay her off on 25 January 2024 while it looked for alternative work. It stated that it held six meetings with her over this period.

The Respondent disputed that the Complainant was dismissed. It stated that she resigned and that her claim is properly one of constructive dismissal, not direct dismissal. It stated that it told her repeatedly, both orally and in writing, that it had no alternative role for her once she said she would not return to the client company, and it pointed to written confirmation given after her employment ended that she remained on layoff and had not been terminated. It stated that she failed to exhaust internal grievance procedures before treating her employment as at an end, including that she had been invited to make a formal complaint on 23 January 2024 and had declined to do so.

On the discrimination claim, the Respondent stated that the Complainant had not identified a valid comparator, since the individuals she pointed to were employees of the client company, a separate legal entity, and did not do similar work to her. It stated that her account of the work from home arrangements was inaccurate. It stated that any request she made to work from home in August 2023, before her pregnancy, was refused, and that occasional working from home after that point was arranged directly with the client company for specific medical or personal reasons, not as a standing arrangement, and that the Respondent itself was not made aware of most of these requests. It stated that she confirmed to it in writing on 9 January 2024 that things were "all good" with the client company.

The Respondent stated that the Complainant's references to her husband's treatment by the client company are not matters concerning the Respondent, since he was never its employee, and that his correspondence with his own employer is not relevant to this case.

The Respondent denied the claims in full and asked that they be dismissed.

The Complainant's case is that she was treated less favourably because of her pregnancy. She says this led to a discriminatory dismissal and to discrimination on the grounds of family status and gender. She is pregnant. This means the initial burden of proof is met relating to gender. The burden shifts to the Respondent to rebut her case.

The Complainant gave oral evidence at the hearing. She stated that she was laid off on 25 January 2024, without being sent to occupational health or having a risk assessment carried out. She stated that a consultation process followed, involving meetings on 2 February, 9 February, and 1 March 2024, which she said was framed as addressing a risk of redundancy. She stated that at the final meeting she was told no role would be available and that her employment would end. She stated that she told the Chief Operations Officer of the client company and the Managing Director of her pregnancy in early December 2023. She stated that she was subjected to a discriminatory comment by the Senior Warehouse Coordinator of the client company in October 2023. She stated that she requested a work from home arrangement on 17 December 2023 and was refused, and that she had previously worked from home while other office-based staff at the client company continued to be allowed to. She stated that she developed pregnancy-related health issues and that her doctor advised against travel and recommended a month's sick leave from 21 December 2023. She stated that her husband was told on 12 January 2024 he could no longer adjust his breaks to drop her at the bus stop, and that she then had to walk to the bus stop in poor weather, worsening her illness. She stated that she raised concerns about discriminatory and abusive treatment by email on 17 and 18 January 2024, and that she gave a GP letter on around 23 January 2024 warning of the impact of continued non-accommodation. She accepted that many of her requests were accommodated. She believed that a significant change occurred after the Christmas break, and that this was when she came to believe she had been discriminated against. She believed that her complaint about this gave rise to her dismissal. She gave evidence that this treatment made her position intolerable, and that the process which followed was contrived to hide the real reason for her dismissal, which she says was her pregnancy.

The Managing Director gave oral evidence. He denied the Complainant's allegations. He relied on the following points, which were also set out in a letter sent to the Complainant's solicitor on 25 March 2024. He stated that the Complainant worked from home for 4.5 days over the 21 weeks before she announced her pregnancy. Each of these days was pre-arranged and approved for a specific reason. He stated that she worked from home for 3 further days over the following 8 weeks. Most of these were arranged directly with the client company and not notified to the Respondent. He stated that the role required on-site support, and that this was made clear to the Complainant from the outset. He stated that an inappropriate comment was made to the Complainant. He stated that this was taken seriously and addressed with the client company, and that the Complainant confirmed her satisfaction with this in writing shortly afterwards. He stated that the Complainant never made a formal request to change her working arrangement. He stated that her working from home in December 2023 was self-declared, not sought or approved. He stated that a request to change her working hours in January 2024 was granted within days. He stated that as late as 9 January 2024 the Complainant confirmed in writing that things were "all good." He stated that the Complainant's specific allegations of discrimination were only set out in detail on 18 January 2024. He stated that she then declined the chance to make a formal complaint and asked only for an apology. He stated that the Respondent could not be held responsible for matters concerning her husband's own employment, since it had no control over that.

The Chief Executive Officer of the client company also gave oral evidence. She stated that there is no policy of working from home at the client company, and that the role requires staff to be on site. She stated that every accommodation was given to assist the Complainant, including working from home when advised on medical grounds or when the Complainant said she was unwell. She stated that no grievance or complaint was ever raised with the client company. She stated that what is now alleged to be discriminatory does not reflect the reality of what was a good working relationship. She stated that when the Complainant left, her work was redistributed to other employees.

The evidence of the Chief Executive Officer of the client company backed up the Managing Director's account in substance. On balance, I prefer this evidence. I find that it rebuts the Complainant's allegations of discriminatory dismissal and less favourable treatment.

I accept that no risk assessment was carried out for the Complainant's pregnancy, and that this should have been done. But this alone is not enough to support her claim. The Respondent has rebutted her allegations of discrimination on sworn evidence given at the hearing. The missing risk assessment is a real shortcoming. But it does not amount to discrimination once the substance of her claims has been rebutted on the evidence.

Once the Complainant is shown to be pregnant, the prima facie threshold is met relating to gender discrimination. Separately, no comparator is required in a case of this kind, since pregnancy is a condition unique to women. Both propositions are well settled law, based on the jurisprudence of the Court of Justice of the European Union.

I have concluded that the Complainant's choice to leave was based on an untenable situation at the client company. This arose from her husband's dismissal, not from her own pregnancy. This rebuts the prima facie case.

The evidence of how other staff at the client company were treated is relevant only as background. It shows that the client company did not operate a working from home policy from which the Complainant was excluded because of her pregnancy. There is no evidence that the client company discriminated against her. She was facilitated in the same way as other employees of the client company, though not to the greater extent she would have liked. Her account of what she would have liked from the client company is not in question. It is not disputed that she wanted more than she received. But wanting more accommodation than was given is not, of itself, evidence of discrimination. While she may have liked her husband to meet her at the bus stop, and to work remotely from home, that does not mean the client company was discriminating against her.

 I find that her disappointment grew into a stronger reaction once her husband lost his job. This gave rise to an animus toward the client company. Her husband's dismissal was clearly a traumatic event for her. The client company may not have followed best practice in accommodating her. But it met all legal and medical-based requests made of it, and it did not treat her less favourably.

This factual matrix has been relied upon by the Respondent to rebut the claims brought against them in contrast to the client company. These facts on the balance of probabilities tend to show that the reason the Complainant left her employment was not arising from being discriminated against at the client site. It was a choice not to work at the client site for very understandable reasons, but those reasons were not linked to discrimination.

The Complainant's case is that the absence of a risk assessment during her pregnancy, together with the Respondent's failure to properly investigate her grievances, means the Respondent remains vicariously liable for any discriminatory conduct at the client company's premises, even if that conduct occurred there rather than at the Respondent's own premises. Her position is that where serious allegations of discrimination are raised, an employer's defence depends on having followed up on those allegations diligently.

Vicarious liability can only arise where an underlying wrongdoing is established. I have found that the discriminatory conduct alleged by the Complainant has been rebutted on the evidence. It follows that no vicarious liability arises, regardless of how the Respondent handled her grievance, since there is no underlying wrongdoing for that liability to attach to.

A further question is whether she suffered less favourable treatment for making a complaint of discrimination. That argument is not before me. The Complainant has withdrawn her penalisation claims. Only CA-00062479-001 and CA-00062479-002 remain for decision. The possible less favourable treatment here is the process by which she was told her role was at risk. Even if that process was far from perfect, the reality was that the Respondent had only one role to offer her. That was not a role she wanted. The Respondent had no other work for her.

Section 6(2A) of the Employment Equality Act 1998 provides that discrimination on the gender ground occurs where a woman is treated less favourably on a ground related to her pregnancy or maternity leave, contrary to any statutory requirement. I conclude that no discriminatory dismissal occurred on the ground of gender. I conclude that no less favourable treatment occurred on the ground of gender in relation to her working conditions. I find that she was not discriminated against on the grounds of gender, and that no discriminatory dismissal occurred.

The Complainant's submission also raised the family status ground, alongside gender, in relation to both complaints. Unlike the gender ground, a valid comparator is required for a family status claim. The Respondent put the Complainant on full proof of a comparator for this ground. The comparators she identified were employees of the client company and the Respondent disputed that they were valid comparators. However, the family status case was not sufficiently made out at the hearing. I find that no discrimination occurred on the grounds of family status, for the same reasons set out above, and additionally because this ground was not sufficiently established on the evidence before me.

Obiter Observation

Separately, and without affecting the findings above, I make one observation. The arrangement under which the Complainant worked had some features of an agency relationship, rather than a normal consultancy engagement. Two things point to this. The client company's witness stated that the Complainant's work was redistributed to other employees once she left. The Managing Director's evidence was that day-to-day control over her work rested with the client company. Under equality legislation, liability can in principle extend to a client company as well as to an employer. No claim was brought against the client company in these proceedings. It has not been a party to them. This observation does not decide, and is not meant to decide, anything about the client company's position. It is made only as an observation arising from the evidence before me.

Legal submissions considered

The precedents and statutory provisions cited in the Complainant's submission, including on the burden of proof under section 85A of the Employment Equality Act 1998, the family status and gender grounds, and the right to return to work on no less favourable terms after a pregnancy-related absence, were considered by the Adjudicator.

The precedents and submissions cited in the Respondent's submission, including on the burden of establishing that a dismissal occurred where dismissal is in dispute, and on the requirement to identify a valid comparator, were considered by the Adjudicator.

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's choice to leave was based on an untenable situation at the client company. This arose from her husband's dismissal, not from her own pregnancy. This rebuts the prima facie case.

 The evidence of how other staff at the client company were treated is relevant only as background. It shows that the client company did not operate a working from home policy from which the Complainant was excluded because of her pregnancy. There is no evidence that the client company discriminated against her. She was facilitated in the same way as other employees of the client company, though not to the greater extent she would have liked. Her account of what she would have liked from the client company is not in question. It is not disputed that she wanted more than she received. But wanting more accommodation than was given is not, of itself, evidence of discrimination. While she may have liked her husband to meet her at the bus stop, and to work remotely from home, that does not mean the client company was discriminating against her.

 I find that her disappointment grew into a stronger reaction once her husband lost his job. This gave rise to an animus toward the client company. Her husband's dismissal was clearly a traumatic event for her. The client company may not have followed best practice in accommodating her. But it met all legal and medical-based requests made of it, and it did not treat her less favourably.

This factual matrix has been relied upon by the Respondent to rebut the claims brought against them in contrast to the client company. These facts on the balance of probabilities tend to show that the reason the Complainant left her employment was not arising from being discriminated against. It was a choice not to work at the client site for very understandable reasons, but those reasons were not linked to discrimination.

CA-00062479-001: Arising from my finding that no discrimination occurred, there is no basis to ground a claim of discriminatory dismissal on the ground of gender. I find that the Complainant was not discriminatorily dismissed. This complaint is not well founded.

CA-00062479-002: On the gender ground, arising from my finding that no discrimination occurred, I find that the Complainant was not discriminated against. On the family status ground, arising from my finding that no valid comparator was established and that the claim was not made out sufficiently at the hearing, I find that the Complainant was not discriminated against. This complaint is not well founded.

CA-00062479-003, CA-00062479-004, CA-00062479-005 and CA-00062479-006 were withdrawn by the Complainant and no decision is made in relation to them.

Pregnancy discrimination; discriminatory dismissal; family status; gender; burden of proof; comparator; layoff; redundancy consultation process.