Fearn (complainant) Represented by the Equality Authority vs Emerald Contract Cleaners (respondent) Represented by Management Support Services (Ireland) Limited: Equality Officer Decision DEC-E 2003/037 (Coyle G.) 11th September, 2003
1. DISPUTE
1.1 This dispute concerns a claim by Ms. Laura Fearn who was employed by Emerald Contract Cleaners (Ireland) Limited that she was discriminated against in terms of Sections 6(1) and 6(2)(f) of the Employment Equality Act, 1998 and in contravention of Section 8 of that Act when she was subjected to discriminatory treatment as a result of her pregnancy.
2. BACKGROUND
2.1 The complainant commenced employment with the respondent organisation on 6th April, 2000 as a receptionist. She was offered a position in the accounts area with a promise of being trained up to a more senior accounts position and she signed her contract for this job in August, 2000. In October, 2000 she received a salary increase of 11.3% to reflect management satisfaction at her performance. In November, 2000 the complainant informed management in the respondent organisation that she was pregnant. At the end of November, 2000 the complainant was informed by the General Manager that she was being moved out of the accounts area to a newly created position as Personal Assistant to the Sales Team. The complainant alleges that this move represented a demotion for her, she was moved to a position which had little work and she felt sidelined. According to the complainant she had always been paid sick leave but this ceased after she informed management of her pregnancy and it is her contention that this was discriminatory.
2.2 Consequently the complainant referred a claim to the Director of Equality Investigations on 3rd August, 2001 under the Employment Equality Act, 1998. In accordance with her powers under Section 75 of that Act the Director then delegated the case to Gerardine Coyle, Equality Officer on 9th September, 2002 for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Act. Submissions were received and a joint hearing took place on 19th March, 2003. Additional information was received from both parties with the final correspondence received on 15th August, 2003.
3. SUMMARY OF THE COMPLAINANT'S SUBMISSION
3.1 According to the complainant she commenced work with the respondent organisation on 6th April, 2000 as a receptionist. She was given a brief outline of her terms and conditions of employment but no contract of employment. The complainant states that she previously had one year's accounts experience in another company. In July, 2000 the complainant was offered an accounts position with another company with a salary of £15,000 per annum. The complainant informed the respondent of her job offer and the respondent offered her a job in the accounts department with a salary of £15,500 per annum. She was told that if she accepted the position she would be trained up to a more senior accounts position. The complainant accepted the job offer and signed her contract for this job in August, 2000. According to the complainant she reported to the Chief Executive and owner of the company. A new General Manager joined the respondent organisation on 5th October, 2000.
3.2 The complainant states that in October, 2000 she was given a salary increase of 11.3% bringing her salary up to £17,300. It is the complainant's submission that she had not asked for this increase but was told that it was to reflect her very satisfactory performance in the job. The Senior Accounts Assistant told the complainant that her debt collection was very good and that she had brought more money into the respondent organisation in her couple of months in that department than had been seen for some considerable time. According to the complainant the Chief Executive had agreed and said that he was very pleased with her work.
3.3 In early November, 2000 the complainant informed the Chief Executive that she was pregnant. She was approximately 3 months into her pregnancy and the baby was due on 7th May, 2001. The complainant says that the Chief Executive congratulated her and made no further comment. According to the complainant she was diagnosed with a hiatus hernia which was pregnancy related. She told the Chief Executive about the condition in October around the time of the salary review but prior to announcing her pregnancy. The complainant states that she had been on sick leave because of her hiatus hernia for a total of 6-7 days during the first three months of her pregnancy and generally for one or two days at a time. According to the complainant she usually sent in sick notes from her doctor although these were not required by her contract for absences under four days. The complainant was always paid her full salary on these occasions and no deductions had been made.
3.3 On 22nd November, 2000 the Senior Accounts Assistant tendered her resignation and left on 1st December, 2000. During the last week of November, 2000 the General Manager told the complainant that she was to be moved out of accounts section to a new job as personal assistant to the sales manager. Before the move became effective she was given four weeks in which to train a new girl (who was only four weeks with the respondent organisation) in the accounts work. The Senior Accounts Assistant told the complainant that it was clear that she was being "pushed aside" and the complainant herself felt that there was no reason, other than her pregnancy, for being sidelined. At a meeting later that week with the Senior Accounts Assistant and the Chief Executive the latter told the complainant that she was not aggressive on the telephone with clients. After this meeting the complainant asked the General Manager whether he or the Chief Executive had a problem with her work and was told that there was nothing personal but that they felt that they would prefer to have a male in the role as they believed that clients would pay more attention to a male than a female. The complainant says that this was repeated by the General Manager to another receptionist who said it to the complainant.
3.4 On 4th December, 2000 the complainant approached the General Manager and asked him when she was to commence her new position. The complainant says that she was very concerned that she was simply being moved out of accounts and that there was no real job for her elsewhere. According to the complainant she was given no details of her new job and no actual work to do. The complainant states that a male had been recruited to work in accounts before the Senior Accounts Assistant left. It was the complainant who had to train him in and she states that she found this strange as he was supposed to have considerably more experience than her. The complainant states that she trained him in the "Take 5" accounts package and established from him that he had never used an accounting package previously and he had virtually no experience of credit control or lodgements. After his first week in the job he was sent on a credit control course.
3.5 The complainant states that in her new official role as Personal Assistant she continued to be assigned very little work. She got the impression that there was not a job in this area. According to the complainant she was called back to the accounts area to work from the debtor's ledger to help "get some money in". She was also asked to help the new male employee on different aspects of his job. It is the complainant's submission that she was given virtually no Personal Assistant work and was ignored by the Chief Executive and the General Manager and not acknowledged or greeted when she arrived at work. According to the complainant she found this very difficult and says that it was commented upon by other members of staff. The situation continued to deteriorate during the month of December.
3.6 After Christmas the complainant was out of work sick for two days. The complainant was paid in full and no deduction was made for her sick leave. On 15th January, 2001 the complainant attended a scheduled ante-natal visit to the doctor and on her return to work she was told by a colleague that "everyone knew that they wanted her out". It is alleged that this had been said by the General Manager to a member of staff. The complainant states that she became extremely upset at this comment and she asked a member of staff to inform the General Manager that she was very upset and therefore going home early. Despite being made aware of her extreme distress the complainant notes that the General Manager did not approach her or contact her. The complainant stated that she attended her doctor who certified that she would be out of work until further notice because of the stress she was suffering.
3.7 According to the complainant her husband contacted the respondent on 17th January, 2001 to say that the complainant was out sick and would be sending in a medical certificate. The General Manager asked the complainant's husband if the complainant would be coming back and said that it was costing £80 a day to replace her. It is the complainant's contention that no person was employed on a temporary basis to replace her but a temporary person was employed to replace the new receptionist who was out sick. The complainant states that when her payslip arrived two days pay had been deducted and the respondent said that the deduction was for the 2nd and 3rd of January for which she should not have been paid. It was the respondent's contention that the complainant was not entitled to sick pay. According to the senior accounts assistant she and other employees had always received sick pay.
3.8 It is the complainant's submission that she could not face going back to work because of the stress experienced as a result of having been subjected to hostility and isolation. She contacted Mr. Barry of Management Support Services (Ireland) Limited to check the position about sick leave. He informed her that there was no actual sick pay scheme in the respondent organisation. The complainant told Mr. Barry that she would have to leave her job to which he replied 'you don't have to leave you know'. It was the complainant's belief that she had absolutely no option but to leave because the conduct of the respondent, on learning of her pregnancy, constituted discriminatory treatment which included:
(a) the unilateral alteration of the complainant's terms and conditions of employment;
(b) the demotion of the complainant to the position of personal assistant to the sales manager. This was exacerbated by the fact that no actual job existed;
(c) the requirement on the complainant to train in her replacement and then to assist on occasions;
(d) the complete failure of the respondent to abide by the agreement to train her to a more senior accounts position;
(e) the isolation, refusal to communicate and the social exclusion to which the complainant was subjected constituted a hostile and intolerable working environment;
(f) the discriminatory comments made by the General Manager;
(g) the complete failure of the respondent to respond adequately or at all to the concerns of the complainant;
(h) the unprecedented and unlawful deductions from her salary in respect of sick leave;
(i) the comments made by the General Manager to the effect that they wanted the complainant out.
3.9 The complainant faxed her resignation to the Chief Executive on 6th February, 2001 and she received no response to her fax. It took her several weeks to acquire her P45 from the respondent and she never received her final payslip despite several requests. The complainant states that she was certified for disability benefit for a considerable time after her job finished. When she looked for work after the birth of her baby she was referred to counselling by the local employment registrar in September, 2001. It is, therefore, her contention that she was out of work for over a year as a direct consequence of the discrimination which she suffered in the employment of the respondent.
3.10 It is submitted that the complainant was subjected to less favourable treatment on grounds of her pregnancy and, therefore, on grounds of her sex in contravention of Section 8 of the Employment Equality Act, 1998 in terms of Section 6 of that Act. The complainant cites the judgement of the European Court of Justice in the Dekker case2 which held that unfavourable treatment because of pregnancy is by definition direct discrimination on the grounds of sex. The complainant refers to an extract from the Equal Opportunities Review3 and states that the article in question makes the point that the European Court in the Dekker4 and Hertz5 cases adopted the approach:
"of treating pregnancy for the purposes of discrimination law as a condition unique to women, meriting special treatment. More generally, it holds that if a decision is based on a reason applying only to one sex it is automatically based on sex and directly discriminatory. Thus, under the standard laid down in Dekker and Hertz it is sufficient to show unfavourable treatment as a result of pregnancy in order to prove a breach of the principle of equal treatment".
It is submitted that the above rationale supports the complainant's case.
3.11 The complainant says that the ECJ in Dekker6 stated that whether unfavourable treatment results in direct discrimination on grounds of sex "depends on whether the most important reason for the treatment ...., is a reason which applies without distinction to employees of both sexes or whether it applies exclusively to one". The complainant notes that the Court went on to say that "as employment can only be refused because of pregnancy to women, such a refusal is direct discrimination on grounds of sex". It is the complainant's contention that her treatment resulted from discrimination regarding her pregnancy and therefore constitutes direct sex discrimination. The complainant also notes that the European Court has stated that, in cases involving pregnancy discrimination, comparison with a man is not necessary. The complainant also refers to a recent decision7 under the Employment Equality Act, 1998 in which the Equality Officer found that the respondent had discriminated against the complainant contrary to Article 141 of the EC Treaty and the Equal Treatment Directive when her pay was reduced due to a pregnancy-related illness occurring during pregnancy which resulted in her being unfit for work.
3.12 The complainant asks that Equality Officer to find that she was discriminated against on the grounds of her gender contrary to Section 8 of the Act in terms of Section 6 thereof. The Equality Officer is asked to award compensation to the complainant for the financial loss suffered as a result of the discrimination and for the distress suffered by the complainant.
4. SUMMARY OF THE RESPONDENT'S SUBMISSION
4.1 According to the respondent the complainant commenced employment with the respondent organisation on 6th April, 2000. She was employed initially as a receptionist and during this time her work was satisfactory. In August, 2000 she was offered the position of Assistant in Accounts and Quality, she accepted it and signed the contract. In this role the complainant acted as an Assistant to the Senior Accounts Assistant and was responsible for Credit Control.
4.2 The respondent states that a new General Manager was appointed to the respondent organisation in October, 2000. When he was reviewing the organisation's activities he discovered that in 1999/2000 major financial difficulties had developed as debtors were not making payments on time and debts at that time amounted to approximately £1 million. As a result of this the Bank was in contact with the respondent organisation constantly regarding its cash flow which had been severely affected due to the fact that a substantial part of the outgoing were in wages.
4.3 According to the respondent the complainant informed the Chief Executive in November, 2000 that she was pregnant and the Chief Executive was delighted for her and congratulated her. Also that month the Senior Accounts Assistant handed in her notice. On receipt of that notice the respondent states that it decided to hire a more experienced accounts person because the existing staff had failed to bring in money quickly enough. A person was sourced with the assistance of an employment agency and this person was interviewed by the General Manager and another member of staff who had previously been involved in an Accounts Department.
4.4 The respondent states that the General Manager met with the complainant and explained the situation to her. He offered her a position of PA for the sales team which was an area which needed to be strengthened. According to the respondent the General Manager informed the complainant that her salary and benefits would remain the same. It is the respondent's contention that the complainant informed the General Manager that she would be delighted to take the role and accepted the offer. The respondent states that the complainant, at no time, indicated that she had any problem with this move and was keen to know when she would be starting in her new position. The respondent says that due to the financial crisis facing it, the complainant was asked to assist the new Accounts Manager in becoming familiar with its procedures and clients. She was also asked to assist in getting the outstanding Debtors lists down which was a priority. This task was also undertaken by both the General Manager and the Chief Executive. The respondent states that because of this the complainant's role of PA was never given an opportunity to develop before she left. The respondent further notes that during this period the complainant made no complaint about the lack of PA work and was helpful in assisting the Accounts Department to get in outstanding money.
4.5 According to the respondent the complainant was absent from work for medical reasons on 2nd and 3rd of January, 2001. As the payroll had been completed in advance for the Christmas and New Year break the complainant's wages were already paid for this period (including 2nd and 3rd) as she had been due to work on these days. The respondent states that the General Manager was told (on 15th January, 2001) by a member of staff that the complainant had gone home because she was feeling unwell. It is the respondent's contention that as far as it was aware the complainant had gone home for medical reasons, not because of alleged rumours which it maintains were totally unfounded. The respondent says that the complainant, if she felt aggrieved, could have raised such a grievance with a member of management or with the Management Support Service (Ireland) Limited. According to the respondent the General Manager received a telephone call from the complainant's husband on 17th January, 2001 to say that the complainant was out sick and would send in a medical certificate. When the next payroll was done by the respondent it was noted that the complainant had been paid for 2nd and 3rd of January, 2001 when she had been out sick. The respondent states that as it was not the policy to pay all employees while on sick leave this overpayment to the complainant was rectified by a deduction from her pay cheque. According to the respondent this was explained to the complainant's husband when he rang the General Manager to complain about the deduction and the General Manager refuted the contention that the complainant was entitled to 10 days sick pay.
4.6 The respondent states that the complainant contacted Mr. Barry of Management Support Services (Ireland) Limited with her grievance regarding her sick pay. She asked that he investigate the matter as she felt that she was entitled to the payment. Following his investigation Mr. Barry informed the complainant that under her contract of employment she had no entitlement to sick pay. During the course of their conversation the respondent states that the complainant informed Mr. Barry that she had decided to leave the employment of the Company. The respondent notes that the complainant did not give any indication that she was leaving because of any treatment by the Company or that she had been discriminated against in any way. According to the respondent Mr. Barry informed the complainant that she did not have to leave but the complainant indicated that her mind was made up. Then on 6th February, 2001 the respondent received a fax of resignation from the complainant.
4.7 The respondent refutes the claim that its attitude towards the complainant changed because she was pregnant. It also denies that it discriminated against or isolated the complainant. She was always kept up to date about developments. The respondent states that when the decision was made to recruit a qualified Accounts Manager the General Manager held a meeting with the complainant and informed her of this. According to the respondent if it had wished to get rid of the complainant the recruitment of an Accounts Manager would have been a good basis on which to make her redundant. Rather the respondent offered her an alternative position in the organisation on the same terms as she had already been employed. The respondent notes that when the position of PA was offered to the complainant she expressed her satisfaction at the offer. It is the respondent's contention that the complainant was asked by the General Manager if she would assist with debt collection and she agreed to assist as she was aware of the seriousness of the Company's position.
4.8 In relation to sick pay the respondent states that, while on previous occasions staff may, at the discretion of the Company, have received payment for sick leave for which they had no entitlement, it was not paid to the complainant or other staff at this time and this decision was prompted by the severe financial difficulties. According to the respondent the complainant was not the only person who was not entitled to sick pay and did not receive it. The respondent notes that this claim concerns discrimination in the workplace and it says that the complainant has also referred a complaint elsewhere regarding the issue of resignation. The respondent thus contends that this matter should not form part of the considerations of the Equality Officer.
4.9 In response to the reasons (paragraph 3.8 above refers) why the complainant felt that she had been discriminated against the respondent states as follows:
(a) At no time was the complainant's conditions of employment unilaterally changed. It is clear from the complainant's contract of employment that she was not entitled to sick pay.
(b) The respondent states that there was no demotion or deterioration of the complainant's terms and conditions of employment when she was offered the position of PA to the Sales team. In fact the respondent states that the Sales team was becoming very important to the organisation due to the need to grow the business.
(c) The respondent states that it would not be uncommon for a person familiar with an area of operation to show a new person how the organisation operates and especially if they are leaving to work in another area.
(d) According to the respondent the complainant was not denied the opportunity to be trained up in the Accounts Department but she was not there long enough to enable the training to be done. The respondent states that there was an urgency to resolve the immediate cash flow problems and it was considered that the complainant's skills were best utilised supporting the sales team which had been identified as an area that needed to be strengthened.
(e) The respondent denies that there is any evidence to suggest any form to isolation or social exclusion. The respondent considers it an inclusive policy that of seeking the complainant's assistance to overcome the debtor's problem and the responsibility of showing the new Accounts Manager how the organisation operated.
(f) The respondent states that the General Manager denies the making of any comments of a discriminatory nature.
(g) The respondent states that it was unable to respond to concerns the complainant had as she did not make the respondent aware of them. It is the respondent's contention that there is an onus on every employee to raise concerns with their employer.
(h) According to the respondent it has been clearly established that the complainant was not entitled to sick pay. The respondent also states that an employer is entitled to make deductions under the Payment of Wages Act where there has been an overpayment as in this instance.
(i) The respondent states that the General Manager denies making any comments to the effect that the organisation wanted the complainant out. The respondent notes that no evidence has been presented to support this claim.
(j) It is the respondent's submission that if the complainant felt that she had been unfairly treated the onus was on her to bring the matter to the respondent's attention to allow it deal with the grievance. The respondent states that the complainant had this opportunity on numerous occasions but did not avail of them.
4.10 The respondent states that in the case of alleged discrimination the complainant needed to alert her employer so as to allow an opportunity for the matter to be investigated. According to the respondent the principles of natural justice apply equally to all parties and cannot be applied one way only. It is the respondent's contention that it is unacceptable to come at a later date and make these claims as it denies the employer any fair opportunity to examine behaviour and remedy any wrong doings or allow clarification of actions. The respondent states that had the complainant afforded her employer this opportunity and had the employer failed to take appropriate action, if it was deemed necessary, then she may be justified in taking the action that she did take, but not in any other circumstances.
4.11 In conclusion the respondent denies that the complainant was treated in a discriminatory manner by her managers and that her pregnancy had nothing to do with the action of her managers. The respondent states that the complainant was consulted and involved in all actions at all times. It is the respondent's contention that the complainant has an obligation to afford her employer an opportunity to remedy a wrong if one is being committed. The respondent states that the complainant was not entitled to sick pay and that she was not forced to resign when she did and any resultant loss of maternity leave benefit arose as a result of her own actions and not those of her employer.
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 The issue for decision in this claim is whether or not the respondent discriminated against the complainant in terms of Sections 6(1) and 6(2)(a) of the Employment Equality Act, 1998 and in contravention of Section 8 of that Act when it allegedly treated her unfavourably as a result of her pregnancy. In making my decision in this claim I have taken into account the evidence (both written and oral) of the parties.
5.2 At the hearing of this case the complainant clarified that her claim relates to an allegation that she was treated in a discriminatory manner because she was pregnant. This treatment was as a result of:
1) Demotion where she was forced into a change of job and was replaced by a male;
2) In her new role she was left without work and sidelined;
3) She was not paid sick leave during her pregnancy even though she had always received sick pay before her pregnancy.
At the hearing the complainant also confirmed that she was not arguing that the hiatus
hernia was a pregnancy-related illness.
5.3 The complainant commenced employment with the respondent organisation on 6th April, 2000 as a receptionist. She was offered the position of Accounts Assistant in July, 2000 and told that if she accepted the position she would be trained up to a more senior accounts position. In October, 2000 she received a salary increase on 11.3% and was told that this salary increase reflected her very satisfactory performance in the job. A new General Manager was appointed on 5th October, 2000. In early November, 2000 the complainant informed management in the respondent organisation that she was pregnant. On 22nd November, 2000 the Senior Accounts Assistant (with whom and to whom the complainant worked) tendered her resignation. During the last week of November, 2000 the complainant was informed that she was being moved out of the Accounts Section to a newly created position of Personal Assistant to the Sales Managers. She was replaced in her accounts position by a male. According to the complainant she got no work in her new position. Rather she spent her time training in the new male employee who replaced her in the Accounts area and assisting in the endeavours to get money into the respondent organisation.
5.4 It is the complainant's contention that the change in her role was a demotion and it resulted directly from her indication to her employer that she was pregnant. The respondent denies this saying that the complainant was offered the Personal Assistant position at the same rate of pay and conditions as she held when she was employed as an Accounts Assistant. I note that the complainant received a substantial pay increase just one month before the proposed change in her role. The reason for this pay increase was to reflect the respondent's satisfaction with her work. It is difficult, therefore, to understand why the respondent proposed this move at this time especially when her superior (the Senior Accounts Assistant) had tendered her resignation and the respondent argued that it was experiencing serious financial difficulties in getting money in from clients leading to pressure from the banks. This pressure from the banks was, according to the respondent, by way of telephone calls from the Assistant Branch Manager and not in writing. Furthermore the complainant and the Senior Accounts Assistant were replaced by one person (a male) who had to be trained into the position and who was paid a lower salary than that of the Senior Accounts Assistant or the complainant.
5.5 The amount of money taken in during 2000 is set out in Appendix A and I note that the amount taken in after the complainant started working in the Accounts area in July, 2000 is higher than that taken in all of the previous months in 2000 with the exception of February. Given the alleged financial constraints in the respondent organisation it is not logical to move a person doing the job, and whose performance has been rewarded, in favour of a new person who requires training. I note that a big effort was made to get payment from clients in December, 2000 and January, 2001 but a number of people in the respondent organisation including the Chief Executive and the General Manager were involved in this task. As I can establish no logical explanation for moving the complainant at what appears to have been a critical time for the respondent organisation I can only assume that knowledge of her pregnancy influenced the decision. The respondent has argued that the complainant was not demoted as she was moved to her new position with the same terms and conditions of employment including pay. However on taking the Accounts Assistant position the complainant was told that she would be trained up to a more senior position. By moving the complainant she lost any expectation she may have had of progressing in the Accounts area including taking over the position of Senior Accounts Assistant. In this regard, therefore, I am satisfied that the move was a demotion.
5.6 The complainant has argued that the discriminatory treatment of her is reflected in the fact that she was given no work as part of her new role and that she was sidelined. The respondent accepts that the complainant had not actively commenced in her Personal Assistant role as she was engaged in the efforts to attract funds into the organisation. I note that the complainant was sent on a training course. However as I have found at paragraph 5.5 above that the complainant was effectively demoted by being moved I consider that it logically follows that the complainant was sidelined when she was placed in a newly created job and given no specific tasks or guidance.
5.7 At the hearing of this claim the complainant alleged that management made comments about wanting her and others out of the organisation. She also alleged that a comment was made at a meeting about her telephone manner. The complainant says that, in relation to the appointment of a male to Accounts, the General Manager was overheard in a conversation saying "maybe a guy would be good on the phone". The respondent has denied these allegations. As there is a conflict between the parties regarding these allegations I will need to address whether the balance of probabilities tips in favour of the complainant's version of events. Given that I have already found that the complainant was demoted and sidelined I am satisfied that the balance of probabilities tips in favour of her version of events. I, therefore, find that these alleged comments were discriminatory.
5.8 The complainant alleged that she was treated in a discriminatory manner by not being paid sick leave during her pregnancy even though she had always been paid sick leave before her pregnancy. The respondent has denied this allegation saying that due to its serious financial constraints it was decided not to pay sick leave. The respondent also notes that it was not obliged to pay sick leave. I am satisfied that the respondent was not obliged to pay sick leave. However as sick leave had always been paid there was every expectation by the complainant that she would continue to receive pay for sick leave. Having changed its policy in this regard the complainant and all other staff members should have been informed.
5.9 According to the respondent a number of staff members were not paid when on sick leave. In details provided to me I note that another member of staff, as well as the complainant, had sick leave pay deducted from her salary during the week of 16th January, 2001. In April, October and November, 2001 other staff members had pay deducted for sick leave. The complainant alleged that the respondent deducted her pay because of pregnancy related sick leave and only made the argument of a change in policy after she had made the claim in a submission to the Labour Court in October, 2001. I am satisfied that the evidence before me does not support this contention. Furthermore I do not find that the respondent discriminated against the complainant in relation to sick leave pay.
5.10 The respondent, in its defence, has argued that the complainant did not complain about the treatment at the time. Where the alleged discriminatory treatment is coming from senior management who would ultimately decide any internal complaint the complainant can validly decide that there is no point in making a complaint8. Similarly while the respondent may claim to be unaware of some aspects of the complaint e.g. the complainant leaving work on 15th January, 2001 because she was distressed at her treatment rather than being ill, it is clear that the respondent was fully aware of the main facts i.e. her pregnancy, the nature of her replacement, the nature of the new post and her anxiety that her performance was apparently called into issue.
5.11 In conclusion I find that the complainant was directly discriminated against on the gender ground in relation to her demotion which I am satisfied was related to her pregnancy. I also find that the complainant was treated in a discriminatory manner by being effectively sidelined and given no work. On the balance of probabilities I an satisfied that the alleged comments were made by the respondent and were discriminatory. Finally I find that the complainant was not treated in a discriminatory manner in relation to sick leave pay.
6. DECISION
6.1 In view of the foregoing I find that Emerald Cleaning Services discriminated against Ms. Laura Fearn in terms of Sections 6(1) and 6(2)(a) of the Employment Equality Act, 1998 and contrary to the provisions of Section 8 of that Act when she was demoted and sidelined for no other reason than she was pregnant and when she was subjected to discriminatory comments.
6.2 In terms of remedy I order Emerald Cleaning Services pay Ms. Fearn the sum of €15,000 which relates specifically to her loss of opportunity and stress which she suffered as a result of the discriminatory treatment.
___________________
Gerardine Coyle
Equality Officer
11th September, 2003
2 ECJ Case No. 177/88
3 Equal Opportunities Review No. 35: January/February, 1991 - Page 41
4 ECJ Case No. 177/88
5 ECJ Case No. Her 179/88
6 ECJ Case No. 177/88
7 Equality Officer Decision DEC - E2001 - 025
8 Labour Court - A Company v A Worker - EEO 4/92
APPENDIX A
Financial Details
Balance on account as at 1/1/00 - €15,286.74 DR
Balance on account as at 30/6/00 - €109,382.69 DR
Balance on account as at 1/7/00 - €109,711.55 DR
Balance on account as at 30/9/00 - €100,699.00 DR
Balance on account as at 1/12/00 - €133,259.61 DR
Money taken into respondent organisation during 2000
January, 2000 - €295,456.69
February, 2000 - €371,551.54
March, 2000 - €321,619.70
April, 2000 - €281,198.84
May, 2000 - €239,690.72
June, 2000 - €338,703.84
July, 2000 - €352,658.74
August, 2000 - €321,532.48
September, 2000 - €406,180.57
Oct/Nov, 2000 - €744,250.48
Aged Debtors Report:
October, 2000 was €1.1 million owed on annual turnover of €4.65m
May, 2001 was €1.5m owed on annual turnover of €8.43m