DEC-E2008-018 - Full Case Report

SUMMARY[1]

Ms. Connerty (complainant) Represented by Mr. Archbold  vs  Caffrey Transport (respondent) Represented by Mason Hayes and Curran Solicitors:

Employment Equality Acts, 1998-2007  Sections 6, 8 and 74(2) -  Employment  -  Discriminatory Treatment  -  Gender  -  Marital Status  -  Family Status  -  Victimisation

Background:

The complainant was employed as an accounts assistant with the respondent organisation and it is her contention that she was treated less favourably on the grounds of her gender, marital status and family status when her son was ill in hospital.  Following her departure from the respondent organisation the complainant alleges that two prospective employers received bad references about her from the respondent with specific mention being made to the equality case she had brought against the respondent and as a result one of these prospective employers refused to offer her a job.  The respondent denies all the allegations of discriminatory treatment and victimisation.

Conclusions and Decision:

The Equality Officer found that the complainant had failed to establish a prima facie claim of discriminatory treatment on the grounds of gender, marital status and family status.  The Equality Officer held that the complainant was victimised by the respondent when reference was made to her equality and other employment claims she had brought against the respondent.  In this regard the Equality Officer ordered the respondent to pay to the complainant the sum of €15,000 in compensation for the stress suffered as a result of the victimisation. 

Cases Cited:

Labour Court Determinations – The Southern Health Board v Dr. Theresa Mitchell – DEE011

UK House of Lords – Hedley Byrne & Company Ltd v Heller & Partners Ltd – 19640 AC 465

UK Queen’s Bench Division – Lawton v BOC Transshield Ltd – [1987] IRLR 404

1.           DISPUTE      

1.1       The dispute concerns a claim by Ms. Connerty that she was subjected to discriminatory treatment on the grounds of gender, marital status and family status within the meaning of Section 6 of the Employment Equality Acts, 1998-2007 and contrary to the provisions of Section 8 of those Acts.  Ms. Connerty further alleges that she was subjected to victimisation in terms of Section 74(2) of the Employment Equality Acts, 1998-2007. 

2.           BACKGROUND

2.1       The complainant was employed as an accounts assistant with the respondent organisation and it is her contention that she was treated less favourably on the grounds of her gender, marital status and family status when her son was ill in hospital.  Following her departure from the respondent organisation the complainant alleges that two prospective employers received bad references about her from the respondent with specific mention being made to the equality case she had brought against the respondent and as a result one of these prospective employers refused to offer her a job.  The respondent denies all the allegations of discriminatory treatment and victimisation.  

2.2             Consequently the complainant referred her complaint of discriminatory treatment and her claims of victimisation to the Director of the Equality Tribunal on 16^th March, 2005; 30^th March, 2005 and on 14^th June, 2005 respectively under the provisions of the Employment Equality Acts, 1998-2004.  In accordance with her powers under Section 75 of those Acts the Director then delegated the claims to Gerardine Coyle, Equality Officer on 29^th January, 2007 for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of these Acts.  Following receipt of submissions a joint hearing took place on 14^th January, 2008.  Final information in this claim was received on 25^th April, 2008. 

3.            SUMMARY OF THE COMPLAINANT’S SUBMISSION

3.1       The complainant states that she was employed as an accounts assistant with the respondent organisation from 9^th September, 2003 to 21^st February, 2005 on a salary of€597.00 per week.  It is her submission that on 26^th January, 2005 her son became ill and was hospitalised.  The complainant says that on Thursday, 27^th January, 2005 she contacted the respondent organisation but got no reply and she immediately sent a text to the company’s transport manager to report that she would be absent from work to be with her son.  It is the complainant’s submission that on that same day she received a text message from the respondent asking her to contact the respondent organisation.  According to the complainant she did so and spoke with the respondent’s wife who she alleges insisted that she (the complainant) should know how long her son would be in hospital and when she (the complainant) would be able to return to work.  The complainant says that she was unable to provide this information and as the conversation became heated she terminated the conversation.  It is the complainant’s submission that later that evening the respondent contacted her to say that the company accountant would be in the office over the following few days and as a result it may be necessary to contact her.  The complainant says that she was not in work on 28^th January, 2005 but did attend work on Saturday, 29^th January, 2005 (normally a day off and her son was still in hospital) to complete the payroll and a number of other tasks.  According to the complainant she contacted the respondent to inform him of the work she had completed and to say that she would not be in work on Monday, 31^st January, 2005.  It is the complainant’s submission that the respondent became very aggressive and chastised her so-much-so that she offered to work on the laptop while in the hospital with her son.  The laptop was not available. 

3.2             The complainant says that on Monday, 31^st January, 2005 the respondent’s wife contacted her to know why she was not in work and she informed her that she (the complainant) had told the respondent during the course of a conversation two day earlier that she would not be in work that day.  The complainant’s son was discharged from hospital on the night of 31^st January, 2005 and she says that the respondent’s wife rang her the next day and was informed by her (the complainant) that she would not be returning to work until the following week.  According to the complainant the respondent’s wife again took issue with her over her continued absence and as a result the complainant did attend work on Wednesday, 2^nd February, 2005 from 9.30a.m. to 2.00p.m. She informed the respondent’s wife that she would not be in work on Thursday, 3^rd February, 2005 but that she would attend work for a half day on the Friday, 4^th February, 2005 which she did.  The complainant says that, aside from all the telephone calls she made and received (as outlined above), she also received two calls from another employee in the respondent organisation about the collection of cheques.  According to the complainant she returned to work on Monday, 7^th February, 2005.  The respondent was absent on holidays from 31^st January to 7^th February, 2005.

3.3             The complainant points to a 2002 study carried out by the research firm MORI MRC for the European Industrial Relations Observatory in which it is stated “as many as 84% of those taking unpaid parental leave were women”.  She notes that the study also found that “women were twice as likely to use force majeure leave as men”.  According to the complainant the Irish Congress of Trade Unions figure for the take-up of parental leave also produces a figure of 84% women.  She submits that any discriminatory practices related to parental leave are, logically, directed at women as it is mostly women who avail of such leave.  In other words to discriminate against those on parental leave is to discriminate against women.  It is submitted by the complainant that the treatment she received in this case constitutes discrimination within the meaning of the 1998 Act in that she was treated ‘less favourably’ than a man and/or a person without children ‘is, has been or would be treated’ and contrary to Sections 6(2)(a) and 6(2)(b) of the 1998 Act.

3.4             As regards her victimisation claims the complainant states that following her departure from the respondent organisation she immediately set about mitigating her loss by attempting to secure alternative employment.  Operating through an employment agency the complainant says that she made a job application to Classic Furniture.  On 18^th March, 2005 she received a telephone call from the agency informing her that Classic Furniture had received a bad reference from the respondent and that specific mention had been made to the equality case which she had taken.  As a result the complainant failed to secure employment with Classic Furniture.  Some days later the complainant was offered employment with Joe Duffy Motors pending the provision of suitable reference and on 24^th March, 2005 she was informed by her new employer that they had received a bad reference from the respondent and the new employer made reference to her equality and unfair dismissals claims.

3.5             The complainant says that on 6^th January, 2006 the respondent appeared before the Employment Appeals Tribunal and testified under oath that the complainant was a “very capable worker (who) took everything on board and did a good job”.  It is the complainant’s submission that in the course of his sworn evidence the respondent confirmed that he had conveyed his disgust at the equality and other claims brought by the complainant and the respondent suggested that he was giving the prospective employer ‘the full picture’  by including these matters in his reference regarding the complainant.  The complainant submits that such matters were clearly discriminatory and were intended to penalise her for exercising her rights under the terms of the Employment Equality Act, 1998.  It is further submitted by the complainant that the above acts constitute two separate acts of victimisation/discrimination and should be subject to two separate findings and two awards of compensation.  The Equality Officer is also asked to note that the respondent has failed to respond to the questionnaire form (ODEI.3) forwarded to the respondent organisation on 14^th March, 2005 and provided for in Section 76 of the 1998 Act.  In accordance with Section 81 of the Act the Equality Officer is asked to “draw such inferences as seem appropriate from the failure to supply the information” and to find that the complainant was discriminated against by the respondent.

4.                 SUMMARY OF THE RESPONDENT’S SUBMISSION

4.1             The respondent organisation provides refrigerated transport services mainly to companies in the food sector, delivering to and from the UK.  It commenced trading in 1992 and now employs 33 people.  The employees are made up mainly of drivers of the refrigerated trailer and truck units and there are 5 office staff employed on a full time basis.

4.2             The respondent notes that it is unclear as to the exact nature of this claim.  It is noted that in the first of her claims the complainant claims that she was discriminated against on the grounds of force majeure leave as a result of being treated in a manner, which was different to the way in which a male would have been treated in similar circumstances.  In her second claim the complainant complains of being discriminated against on the grounds of victimisation because of what she alleges was a ‘poor reference’ provided by the respondent to a prospective employer.  In both claims the complainant alleges that she was discriminated against on the grounds of her gender, marital and family status.  The respondent notes that in the ODEI.3 form the complainant has submitted she deleted paragraph 1(b) of that form which refers to a claim of penalisation on ‘the grounds of victimisation’.  This, the respondent considers, unusual given that it forms one of her claims.  The respondent notes that in question 3 of the form the complainant refers to a claim of force majeure leave.  It is the respondent’s belief that the manner in which the complainant has lodged her claim has prejudiced it in providing a comprehensive response to that claim.

4.3             The respondent states that the complainant was employed as an Accounts Assistant with the respondent organisation from 9^th September, 2003 until her resignation effective on 21^st February, 2005 and she was in receipt of an average weekly wage of €651.  In addition the respondent says that the complainant paid herself a bonus of €1,300 in January, 2005.  It is the respondent’s submission that the complainant took this bonus in a manner contrary to the provisions of her appointment letter which stated that “an annual performance linked bonus, expected to be at a level of€1,300 per annum will also be paid”.  The respondent notes that the complainant did not discuss this payment with the respondent in advance of making it to herself.  Furthermore the respondent states that in the week prior to her resignation an ex-gratia payment of €1,000 was made to her.  

4.4             During the period of her employment the respondent states that the organisation was managed by its owner supported by two Operations personnel and the complainant.  The complainant was responsible for all accounting and administration matters and was assisted by one other junior member of staff.  It is the respondent’s submission that two aspects of her job were key to the ongoing operation of the business.  According to the respondent payroll had to be prepared weekly to strict deadlines to ensure that drivers’ wages were paid into their banks on time each week.  The respondent also utilised debtor finance for business funding and it says that the timely generation of sales invoices and the online uploading of invoice values to the relevant bank were critical to the drawdown of these funds.  It is submitted that these time critical transactions sometimes required communication with the respondent when he was absent and this was not normally a problem for the complainant.  As it was a small office the respondent says that it was not possible to have back up personnel available at short notice to step into critical roles.  The respondent says that because there were a small number of office based employees it facilitated flexibility in working arrangements which allowed paid time off whenever necessary to the complainant and other employees to attend to any parental or personnel duties.  According to the respondent the complainant sometimes worked at weekends to catch up on workload for which she was paid.  As the complainant was responsible for preparing employees’ salaries she was not required to have any overtime which she worked authorised by the respondent.  The respondent says that it supported the complainant at all times when she needed flexibility provided that her job functions were complete.

4.5             The respondent says that on Tuesday, 25^th January, 2005 the complainant left the office at lunchtime for the afternoon leaving a message saying that she was unwell and would be returning to work in a day or so.  According to the respondent the complainant’s partner, who also worked for the respondent organisation, provided a note with the banking passwords on Friday, 28^th January, 2005 and advising that the complainant would be returning to work on Monday, 31^st January, 2005.  The respondent denies the complainant’s contention that she received a text from the respondent on 27^th January, 2005 which advised her to call the respondent.  It is also denied that the respondent’s wife spoke with the complainant and insisted that she should know when her son would be discharged from hospital.  According to the respondent it was not known to the respondent or his wife that the complainant’s son was in hospital until Monday, 31^st January, 2005.  The respondent says that it only had contact with the complainant on two occasions during her period of absence.  Firstly on Tuesday, 1^st February when the respondent’s wife contacted the complainant to obtain details regarding banking arrangements.  During this contact the respondent’s wife offered to prepare the payroll for that week but the complainant said that she would be back in work on Wednesday and would look after it then.  It is the respondent’s submission that the complainant explained the procedure her son required in hospital and the respondent’s wife asked in a sympathetic manner how long it is likely he would be in hospital to have that procedure.  The respondent denies that it insisted that the complainant should know when her son would be discharged or that a demand was made for a return-to-work date.  Furthermore the respondent denies that the conversation became heated and says that the complainant made this allegation before the Employment Appeals Tribunal hearing on 6^th January, 2006 but withdrew the allegation when the respondent denied it.  According to the respondent the second time the complainant was contacted was Wednesday, 2^nd February, 2005 when he called the complainant at work (she was in the office for a half day) from his holidays.  During this conversation the complainant informed the respondent that her son was home from hospital and that she would be able to return to work from that Friday.  The respondent notes that the complainant left at lunch time that Friday having resigned giving one month’s notice effective as at that day.

4.6             The respondent says that while it is fully aware of it obligations in respect of force majeure leave under the Parental Leave Act, 1998 it did not at any stage seek to restrict the complainant’s paid time off work to 3 days in any period of 12 months or 36 days in any period of 36 months.  According to the respondent it has at all times provided the complainant with the flexibility needed to attend to her childcare arrangements.  The respondent submits that it is significant that at no time did the complainant ask that the leave she took to care for her son be treated as force majeure leave.  The respondent denies that it victimised the complainant providing a bad reference about her to Classic Furniture.  According to the respondent it was indicated to Classic Furniture that the complainant had been a good and effective employee.  Classic Furniture was accurately and fairly advised that the complainant had provided a month’s notice but had departed after two weeks.  The respondent says that Classic Furniture was also accurately and fairly advised that it had received notice of employment claims from the complainant’s representative.  It is for the same reasons as above that the respondent denies that it victimised the complainant by providing bad references to Joe Duffy Motors.  Furthermore the respondent submits that it could hardly have victimised the complainant in circumstances where she was successful in securing work with Joe Duffy Motors.  The respondent notes that the complainant indicated at the Employment Appeals Tribunal that she continued in this employment until she decided to leave as the location of this company involved too much travel to and from work.  It is the respondent’s contention that this indicates that a satisfactory reference was received.  The respondent denies that it conveyed its ‘disgust’ in sworn evidence before the Employment Appeals Tribunal as suggested by the complainant at the equality and other cases taken by her.

4.7             The respondent contends that the statistics and quotations offered by the complainant in her submissions are not relevant to this claim.  According to the respondent this information is given in support of a claim of discriminatory treatment on the grounds of gender but there is no evidence in her submission to support this claim.  The respondent submits that the complainant must establish facts to the satisfaction of the Equality Tribunal which leads to an inference of discrimination before the burden of poof passes to the respondent to prove on the balance of probabilities that it did not discriminate against her.  It is the respondent’s submission that this principle has been tested before the Equality Tribunal and the Labour Court in the past and it cites the case of The Southern Health Board v Dr. Theresa Mitchell[2] in this regard.  In addressing the primary facts the complainant seeks to rely on, the respondent notes that the complainant has adduced no evidence about the manner in which the Transport Manager was treated in circumstances which is alleged were similar to the complainant and even if the complainant had adduced such facts she would then have to show that the respondent had treated the Transport Manager in a manner which was different to the way she was treated and that the difference in treatment was wholly based on his gender before the burden of proof could pass to the respondent.  The respondent contends that it did not afford any preferential treatment towards the Transport Manager who was facilitated in taking one week’s annual leave following the birth of his baby and he was not given any further leave on a paid or unpaid basis.  It is the respondent’s submission that the complainant has not raised a sufficient ‘inference of discrimination’ and as a result the ‘burden of proof’ has not shifted to the respondent.  In these circumstances the respondent submits that the complainant’s argument that she was treated differently to the way in which a man would have been treated must fail.

4.8             The respondent denies that it subjected the complainant to victimisation as alleged in relation to the references it provided to Classic Furniture and Joe Duffy Motors.  Rather it gave prospective employers an accurate account of its experience of dealing with the complainant in its capacity as her employer.  The respondent cites a number of cases which refer to the obligation on an employer when giving a reference to a respective employer.  In Hedley Byrne & Company Limited v Heller & Partners Limited[3] it was held that a person who carelessly provides a reference which is misleading is liable if the person receiving the reference suffers loss as a consequence of his reliance on that reference.  In Lawton v BOC Transshield Limited[4] the Judge held that a duty of care was owed in respect of a job reference to ensure that it was honest, accurate and not negligently written.  In Bartholomew v London Burough of Hackney[5] it was held that the respondent, by informing a prospective employer that the complainant had been suspended from work due to a charge of gross misconduct, was not in breach of its duty of care to him as it was under an obligation to provide a reference which was in substance ‘true, accurate and fair’.  The respondent submits that it did not victimise the complainant in this regard.  Rather it provided a full reference that was honest and accurate including references to aspects of her performance that were good and reliable.  It is the respondent’s submission that the overall impression was fair in the circumstances.  Having regard to the case law cited the respondent says that the reference it gave to prospective employers of the complainant was neither unfair nor discriminatory.

5.                 CONCLUSIONS OF THE EQUALITY OFFICER

5.1             The issue for decision in this claim is whether or not the complainant was subjected to discriminatory treatment by the respondent within the meaning of Section 6 of the Employment Equality Acts, 1998-2007 on the grounds of her gender, marital status and family status and in contravention of Section 8 of those Acts.  It must also be decided if the complainant was subjected to victimisation in terms of Section 74(2) of the 1998-2007 Acts.  In making my decision in these claims I have taken into account all the submissions, both written and oral, from the parties.

Allegation of discriminatory treatment

5.2             It is the complainant’s contention that she was subjected to discriminatory treatment on grounds of gender, marital status and family status in the way she was treated by the respondent when she was absent from work because her son was in hospital.  I note that there is a conflict between both parties as to what communication there was with the complainant during her absence from work as a result of her son’s illness.  It is the complainant’s contention that the level of communication and its nature was such as to constitute less favourable treatment on the grounds of gender, martial status and family status.  The respondent denies this and states that the limited contact with the complainant at this time was necessary because, as a small organisation, it does not have the resources to have cover for employees who are absent from work without notice.  Given that the complainant was in charge of the payroll it was necessary to contact her in that regard to ensure that employees would receive their pay.  I note that the complainant has submitted that inordinate pressure was put on her and as a result she had to attend work for a few hours on a Saturday even though her son was still in hospital.  The respondent noted that the complainant had previously worked on Saturdays in order to get tasks completed and had been paid overtime for such work.  For the duration of her absence while her son was in hospital the complainant was paid in full and there was no issue of this payment to her. 

5.3             In bringing a claim of discriminatory treatment under the Employment Equality Acts, 1998-2004 the onus is on the complainant to establish a prima facie claim before the burden shifts to the respondent to defend its actions[6].   Given the conflict between the parties as to the level and nature of the communications between them when the complainant was absent from work because her son was in hospital and the lack of evidence to support the position of either party I find that the complainant has failed to establish a prima facie case of discriminatory treatment on the grounds of gender, marital status and family status.  In these circumstances the burden has not shifted to the respondent.

Allegations of Victimisation

5.4             It is alleged by the complainant that the respondent, in giving a reference to perspective employers, stated that she had referred equality and unfair dismissal proceedings against the respondent organisation.  The respondent denies that it specifically referred to the equality claim as it was unaware of this claim at the time.  At the hearing of this claim the respondent noted that the discriminatory treatment claim was not passed to it by the Equality Tribunal until 7^th April, 2005 whereas the oral references which were given to prospective employers were given in March, 2005.  It is the complainant’s submission that when she submitted her discriminatory treatment claim to the Equality Tribunal (claim dated 14^th March, 2005) and received by the Tribunal on 16^th March, 2005) she also sent a copy to the respondent with a covering letter dated 14^th March, 2005.  A copy of this was shown to the Equality Officer at the hearing of this claim.  Subsequent to the hearing of this claim the respondent, having checked its records, confirmed that it had received a copy of the referral of the claim from the complainant in March, 2005.

5.5             Section 74(2) of the 1998-2004 Acts provide:

                 “…victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to –

(a)  a complaint of discrimination made by the employee to the employer;

(b)  any proceedings by a complainant;

(c)   …” 

             I note that the complainant has alleged that prospective employers told her that the respondent did say that she had brought equality claims against the respondent organisation.  The respondent has rejected this and says that prospective employers were told that the complainant had brought employment claims.  There is conflict between the parties on this issue.  In such circumstances it is for me to decide which version of events is more credible.  It is my view that the version of events as outlined by the complainant is more credible and as a result I find that this constitutes victimisation under the 1998-2007 Acts and in the case of one prospective employer it adversely impacted on the complainant getting the position.

6.                 DECISION

6.1             In view of the foregoing I find that Ms. Connerty has failed to establish a prima facie case of discriminatory treatment by Caffrey Transport on the grounds of gender, marital status and family status in terms of Sections 6 of the Employment Equality Acts, 1998-2007 and contrary to the provisions of Section 8 of those Acts.

6.2             I further find that Caffrey Transport subjected Ms. Connerty to victimisation in accordance with Section 74(2) of the Employment Equality Acts, 1998-2007.

6.3             Under Section 82 of the 1998-2007 Acts, I hereby order

·       Caffrey Transport to pay Ms. Connerty the sum of €15,000 as compensation for the stress suffered as a result of the victimisation.  This payment is not subject to tax.

·       Caffrey Transport management and employees obtain training on the provisions of the Employment Equality Acts, 1998-2007.

            ______________________

            Gerardine Coyle

            Equality Officer

            29^th April, 2008