Ms Lesley Maye (represented by SIPTU)
V
ADM Ringaskiddy (represented by J.W. O'Donovan)
Key Words:
Employment Equality Acts 1998 and 2004 - direct discrimination - gender ground -pregnancy - night work and light duties - health and safety leave.
1. Claim:
1.1 Ms Lesley Maye claimed discrimination on the gender ground in that she was treated less favourably than other employees because of her pregnancy. After she furnished a medical certificate that she should be given daytime and light duties during her pregnancy, her employer put her off work and it was only after her union intervened that she got a limited period of daytime light work. She claimed that in other situations the respondent had been able to facilitate employees with light duties and day work.
1.2 Her claim was referred to the Equality Tribunal on 16 December 2004. Mediation was not successful in resolving the claim and the claimant requested on 19 July 2005 that investigation be resumed. Submissions were received from both parties and a joint hearing was heard on 13 January 2006. Further information was requested from both parties and the final information was received on 8 February.
2. Response:
The respondent claimed that there was no suitable alternative work which did not pose a risk to her pregnancy, and that they could not create work for her in the light of their grave financial situation. They argued they had acted in accordance with their obligations under the Safety Health & Welfare at Work (Pregnant Employees) Regulations 2000 and their duty of care when they had taken her off work immediately on receipt of her medical certificate. They stated that company policy was only to provide light and/or daytime duties for short-term periods and in order to facilitate rehabilitation into work.
3. Decision
3.1 Section 6(2A) of the Employment Equality Acts 1998 and 2004 provides that:
... 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".
3.2 Both parties agreed that the complainant's normal duties posed an unacceptable risk to her pregnancy.
3.3 The following facts are not in dispute:
- The complainant told her manager of her pregnancy on 12 August 2004 and indicated she could no longer do night duties or heavy work, confirmed with a medical certificate the next day.
- She was told there were no suitable duties for her and she was put off work immediately. She did not receive her three weeks' entitlement to health and safety pay until October.
- After an appeal from her union, she worked for 6 weeks from 31 August to 14 October, on light duties on daytime shifts.
- After 14 October she was put on Health & Safety leave for the remaining months until she started maternity leave on 22 January 2005.
3.4 I am satisfied, on the balance of probabilities, that the respondent had given lighter duties for a five month period to a named employee, Mr. N., three years earlier. The complainant's representatives raised the cases of other named individuals who they claimed received lighter duties but I find them to be insufficiently established or to relate to a much earlier period.
3.5 In the light of all the evidence I consider that the complainant has established a prima facie case of discrimination under the Employment Equality Acts 1998 and 2004. It is accordingly for the respondent to rebut the case.
3.6 The respondent has failed to establish to my satisfaction that they made more than a very superficial effort to provide her with alternative working hours or review her duties. The decision to put the complainant off work was taken on 12 August, the same day as the complainant had informed the respondent of her pregnancy and her need for day work and light duties. While the decision was informed by a recent risk assessment of the duties involved, it was made solely by her manager and the HR manager. A further assessment was carried out by relevant experts on 29 August but again related solely to the risk of her normal duties.
3.7 The Safety Health and Welfare at Work (Pregnant Employees) Regulations 2000 oblige employers to take preventative and protective measures to ensure the health of pregnant employees. Both parties agreed that under the Regulations the respondent had no option but to take the complainant off night duties immediately after receipt of the medical certificate. However the Regulations put significant obligations on employers to find appropriate work for a pregnant employee and did not automatically require that the employee had to be put off work entirely. I am not required to examine compliance with these Regulations as I have no jurisdiction in the matter.
3.8 By the respondent's own admission, they had some flexibility on a short term basis for re-arrangement of shifts and/or duties, and had used this flexibility in the past. They stated that they did not do so on a long-term basis. However I have already found that they exercised this flexibility for a five month period on at least one occasion.
3.9 No evidence was presented that short-term options were considered by the respondent to give time to carry out a thorough assessment of their obligations and the options available. No evidence was presented that they complied with their own policy to discuss with an employee her potential absence to see if she could perform a useful function. Furthermore there was no evidence that the respondent kept under review the availability of other appropriate work during the complainant's Health & Safety leave.
3.10 The respondent also argued that the common law duty of care required them to take her off work. However this approach does not seem consistent with their stated company policy of bringing people back to work in advance of the expiry of their medical certificate, even "possibly earlier than they would have wanted themselves."
3.11 I accept the respondent's argument that it was objectively not possible for them, in their grave financial circumstances, to create work for her which would give rise to additional costs. However, no evidence was adduced either that there were inevitable additional costs or that there was any assessment by the respondent of their likelihood or extent.
3.12 Accordingly I conclude that the respondent has failed to rebut the prima facie case of discrimination.
4. Decision
4.1 I find that Ms Maye was subject to discrimination on the gender ground by ADM when she received less favourable treatment because of her pregnancy. I am therefore required to award redress.
4.2 I hereby direct that she be paid an award of €13,981.18. This includes an amount of €5,981.18, equivalent to the complainant's gross financial loss, and this element is subject to tax as it is in lieu of pay. The balance of €8,000 represents compensation for discriminatory treatment and consequently is not subject to tax.
Melanie Pine
Director
10 February 2006