EQUALITY OFFICER'S DECISION NO: DEC-E/2009/109
PARTIES
DOHERTY
(REPRESENTED BY PADRAIG J O'CONNELL - SOLICITORS)
AND
TRIGHAVEN LTD T/A KILLARNEY TOWERS HOTEL
(REPRESENTED BY MALONE HEGARTY - SOLICITORS)
File No: EE/2006/382
Date of issue 20 Novemberr, 2009
Headnotes: Employment Equality Acts, 1998-2004, Employment Equality Acts, 1998-2008 section 6,8, 74 and 77 - discriminatory treatment - discriminatory dismissal- victimisation - gender -family status- indirect discrimination - burden of proof - part-time work
1. DISPUTE
This dispute involves a claim by Ms Claire Doherty that she was (i) discriminated against by Trighaven Ltd t/a The Killarney Towers Hotel (hereafter called the respondent) on grounds of gender and family status, in terms of section 6(2) of the Employment Equality Acts, 1998 and 2004 and contrary to section 8 of those Acts in respect of her conditions of employment, (ii) dismissed by the respondent in circumstances amounting to discrimination on grounds of gender and family status, in terms of section 6(2) of the Employment Equality Acts, 1998 and 2004 and contrary to section 77 of those Acts and (iii) victimised by the respondent within the meaning of section 74 of the Acts.
2. BACKGROUND
2.1 The complainant commenced employment with the respondent as a bar person in March, 1998 and progressed over time to an administrative post in the respondent's Accounts Department. She contends that prior to commencement of her maternity leave in June, 2005 she agreed with her immediate Line Manager she could return to work on a part-time basis (three day week) instead of the five day week she was on prior to that. The complainant states that the respondent subsequently refused her this arrangement and pursued a campaign of discrimination (on grounds of gender and/or family status) which culminated in the termination of her employment on 14 July, 2006. She contends that this constitutes discriminatory dismissal of her on grounds of gender and/or family status contrary to section 77 of the Acts. The complainant further contends that these alleged incidents constitute victimisation of her in terms of section 74(2) of the Acts. The respondent rejects the complainant's assertions that it discriminated against her and/or victimised her contrary to the Acts. It further rejects that the complainant was dismissed contrary to the Acts and submits that she resigned her position with effect from 14 July, 2006.
2.2 The complainant referred a complaint under the Employment Equality Acts, 1998 and 2004 to the Equality Tribunal on 11 October, 2006. In accordance with her powers under the Acts the Director delegated the complaints to Mr. Vivian Jackson, Equality Officer for investigation and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. My investigation of the complaints commenced on 23 March, 2009, the date the complaint was delegated to me. Submissions were received from both parties and a Hearing of the complaint took place on 30 June, 2009. A small number of points arose at the Hearing which required further clarification and gave rise to correspondence between the parties and the Equality Officer until early August, 2009.
3. SUMMARY OF COMPLAINANT'S CASE
3.1 The complainant commenced employment with the respondent as bar person in 1998 and progressed to the position of Administrative Assistant in the respondent's Account Department sometime in 2003. The complainant states that her normal attendance pattern was Monday-Friday and that prior to commencement of her maternity leave in June, 2005 she discussed the prospect of returning to work after maternity leave on a reduced working week with her immediate Line Manager, Mr. O'Sullivan. She adds that Mr. O'Sullivan agreed she could return to work on a three day week and she commenced maternity leave on that understanding. The complainant states that shortly before the end of her maternity leave she received a telephone call from Mr. O'Sullivan advising her that the respondent's Directors had decided that she must return to work on a full-time basis or she need not return at all. The complainant adds that in the circumstances she had no option but to return to work at the end of her 18 weeks' maternity leave. She submits that the manner in which the respondent behaved constitutes less favourable treatment of her on grounds of gender and/or family status contrary to the Employment Equality Acts, 1998 and 2004. In this regard she refers to the decisions of this Tribunal in Weir v St Patrick's Hospital and Morgan v Bank of Ireland as well as the Code of Practice on Access to Part-Time Working .
3.2 The complainant states that shortly after her return to work she had to spend time (about 20 days over the months November, 2005 - February, 2006) in hospital with her infant child. She states that the respondent refused her force majeure leave under the parental leave legislation and submits that this constitutes less favourable treatment of her on the grounds cited. The complainant further states that around this time the voice messaging facility on her phone, which she contends has been available to her from the outset of her employment in the Accounts Department, was removed from her phone, although the facility was left with one of her colleagues who was responsible for lodgements of "takings" for the respondent. She adds that it was necessary for her to have this facility as there might be occasions when her child's crèche was looking for her urgently. She rejects the respondent's assertion that the alternatives - using the direct dial contact number in the Accounts Department, using her mobile, using the hotel reception or having one of colleagues takes a message - were not satisfactory as there was always the chance she would not receive a message and/or it required her to change the contact details she had advised to a number of people. The complainant contends that the actions of the respondent on this issue amount to less favourable treatment on grounds of her family status.
3.3 The complainant states that Mr. O'Sullivan used abusive language to her and her colleagues following an incident in March, 2006. She adds that she raised this matter with Ms. Morrissey and Mr. O'Sullivan apologised to all concerned. The complainant states that shortly after this she was reprimanded by Ms. Morrissey for "clocking in" for work at a location other than the place where she was assigned. She adds that another staff member (Mr. A) clocked-in at areas other than where he worked and he was not reprimanded. She submits this constitutes less favourable treatment of her on grounds of gender.
3.4 The complainant states that she applied for a days' unpaid leave (for 21 July, 2006) on 14 June, 2006 because she had a hospital appointment for her child. She states that she completed the appropriate form in accordance with the respondent's Staff Handbook and passed it on to the respondent's Personnel Division for processing. She states that she subsequently received a request from Personnel to provide confirmation of the hospital appointment. The complainant adds that when she sought clarification of this from Personnel she was informed that it was necessary because her Line Manager had not the authorised the time off. She adds that when she raised this matter further with the Personnel Officer (Ms. Morrissey) and suggested that the respondent was discriminating against her Ms. Morrissey failed to respond. The complainant states that a male colleague (Mr. A) had previously requested a day off (Friday for the following Monday) and the respondent had raised no issue with this. She asserts that the treatment of her constitutes discrimination on grounds of gender.
3.5 The complainant states that the incident set out in the preceding paragraph was the last straw for her and she tendered her resignation in writing on 20 June, 2006 (effective from 14 July, 2006) setting out the reasons for her decision. The complainant was unable to say whether or not she met with Ms. Morrissey on 22 June, 2006. She adds that she did not invoke the respondent's Grievance Procedure because she felt there was no use in her doing so. She asserts that she had no option but to resign and submits that this constitutes constructive discriminatory dismissal of her on the grounds cited.
3.6 The complainant submits that she was victimised following her return from maternity leave and this culminated in the treatment of her regarding the day off in June, 2006. She adds that when she left she wrote to Mr. X about her pension entitlements and he never responded to her and submits that this amounts to victimisation under the Acts.
4. SUMMARY OF RESPONDENT'S CASE
4.1 The respondent rejects the complainant's assertion that it discriminated against her at any time during her employment with it. It states that she tendered her resignation on 20 June, 2006 (effective from 14 July, 2006) but she did not attend at work from 29 June, 2006 due to sick leave. The respondent therefore rejects the complainant's assertion that she was dismissed from her employment.
4.2 The respondent accepts that prior to commencing her maternity leave the complainant spoke with Mr. O'Sullivan about the possibility of returning to work on a part-time basis. It denies Mr. O'Sullivan confirmed to the complainant that she could return on part-time hours because he would have no authority to make a decision of that nature. It adds that at that time the respondent had no policy on part-time working and confirms that this remains the policy at present. All office staff work full-time hours over a five day week. The respondent states that Mr. O'Sullivan supported the complainant's request and raised it with the respondent's Directors (three in number). It adds that the Directors decided the proposal was unworkable due to previous experience in another company and there refused the request. It states that alternatives (unpaid parental leave, combination of unpaid leave/annual leave for a short duration) were suggested to the complainant but these were not agreeable to her.
4.3 The respondent states that it empathised with the complainant regarding her child's illness after her return to work and that it accommodated her as much as possible. It adds that she was permitted to combine her annual leave entitlement with additional unpaid leave to enable her attend hospital whilst at the same time having some form of income. It adds that it set aside the normal requirement for the complainant to provide evidence of the reason for her unpaid absence and the period(s) were approved without question. The respondent further states that the complainant was accommodated with time off work whenever it was requested, even at a moment's notice, to ensure her child was properly attended to. Indeed, it states that on one occasion Ms. Morrissey asked the complainant if she needed time off and the offer was declined. The respondent accepts that it refused an application from the complainant for force majeure leave but states that this was due to an error in calculating the reference period by Ms. Morrissey.
4.4 The respondent states that the Directors decided to remove the voicemail facility from all phone at the end of January-early February, 2006. It adds that at the suggestion of Mr. O'Sullivan the facility was retained on the phone operated by one of the complainant's colleagues who was responsible for doing the hotel lodgements at that time due to ongoing problems which existed with certain aspects of the lodgements. However, the facility was removed about two months later when the problems subsided. The respondent states that when the complainant raised the matter with Mr. O'Sullivan and Ms. Morrissey she was advised that she could use her mobile at any time, give out the direct lines numbers of phones in the office or use the reception to alleviate her concerns about emergencies but these were not acceptable to her. The respondent states that the removal of the facility was "across the board" and submits that the complainant was not treated less favourably than any other colleague.
4.5 The respondent states that during the course of the Cheltenham Festival in March, 2005 Mr. O'Sullivan noted all of the Accounts Department staff were absent from their desks and were found in the hotel bar watching horse racing. It accepts that in the course of reprimanding the staff Mr. O'Sullivan acted in an inappropriate manner, for which he later apologised to all concerned. The respondent adds that the complainant was not singled out for any particular treatment on this occasions and submits that the incident cannot constitutes discrimination of her contrary to the Acts. The respondent accepts that Ms. Morrissey spoke with the complainant about "clocking-in" at an incorrect location but rejects the suggestion that this and the abovmentioned incident were linked. It states that it late April, 2006 Ms. Morrissey noticed that the complainant and Mr. A were clocking in at a hotel which was not the location where they worked. It adds that Ms. Morrissey spoke with both employees and the practice ceased. It therefore rejects the assertion that this amounts to less favourable treatment of the complainant contrary to the Acts.
4.6 The respondent states that the complainant applied (on 14 June, 2006) for a days' unpaid leave on 21 July, 2006 in accordance with the process set out in the Staff Handbook. It also accepts that the application was queried and that the complainant spoke with Ms. Morrissey about the issue. The respondent rejects the assertion that Ms. Morrissey failed to deal with the matter and states that she attempted to resolve it. It adds that the request for proof was in accordance with the standard policy for unpaid leave and in this case the application had not been authorised by Mr. O'Sullivan and Ms. Morrissey relayed this to the complainant. The respondent states that Mr. O'Sullivan has no line management responsibilities for Mr. A and cannot comment on the incident alleged by the complainant without specifics. In any event, it rejects that it discriminated against the complainant in respect of this issue.
4.7 The respondent states that it received the complainant's letter of resignation on 20 June, 2006 and responded to her immediately requesting her to attend a meeting on 22 June to discuss the matter. It states that in the course of this meeting the complainant elaborated to some degree on the issues which she felt aggrieved about (which she had set out in her letter of resignation) but she was not prepared to reconsider her decision to resign. The respondent states that prior to her letter of resignation the complainant had never indicated she was having difficulty and she never invoked the respondent's Grievance Procedure. In the circumstances the respondent submits that the complainant is not entitled to claim that she was dismissed in circumstances amounting to discrimination contrary to the Acts.
4.8 The respondent rejects the complainant's assertion of victimisation. It states that the complainant wrote direct to the Broker handling the pension fund and never raised the matter with the respondent at the time. It adds that her queries were subsequently dealt with when the respondent became aware of them.
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 The issues for decision by me are whether or not the respondent (i) discriminated against the complainant on grounds of gender and family status, in terms of section 6(2) of the Employment Equality Acts, 1998 and 2004 and contrary to section 8 of those Acts in respect of her conditions of employment, (ii) dismissed the complainant in circumstances amounting to discrimination on grounds of gender and family status, in terms of section 6(2) of the Employment Equality Acts, 1998 and 2004 and contrary to section 77 of those Acts and (iii) victimised the complainant within the meaning of section 74 of the Acts. In reaching my decision I have taken into consideration all of the submissions, both oral and written, made to me by the parties as well as the evidence given by witnesses.
5.2 Section 85A of the Employment Equality Acts 1998 and 2004 sets out the burden of proof which applies to claims of discrimination. It requires the complainant to establish, in the first instance, facts upon which she can rely in asserting the she suffered discriminatory treatment. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised.
5.3 The first issue to be considered is the complainant's assertion that she agreed an arrangement with Mr. O'Sullivan prior to her maternity leave that she would return to a part-time (3 day week) attendance pattern after her maternity leave had ended. It is accepted by the parties that the issue was discussed between the complainant and Mr. O'Sullivan. However, having evaluated all of the evidence presented I find Mr. O'Sullivan's version of the outcome of these discussions as more compelling. He clearly was not in a position to agree to a shorter attendance pattern for the complainant given his position within the organisation (Finance Officer) and the stated policy, confirmed by the respondent at the Hearing that "all office staff were required to work a forty hour week". I am therefore satisfied that what Mr. O'Sullivan indicated to the complainant was that he was prepared to support her request with the Directors - an undertaking I accept he subsequently carried out. The requirement to work full-time cannot amount to direct discrimination contrary to the Acts, as the requirement is gender neutral. However, a gender neutral requirement may constitute indirect discrimination in terms of section 22 and 31 of the Acts.
5.4 Section 22 of the Employment Equality Acts, 1998 and 2004 define indirect discrimination as follows:
"1 ( a) Indirect discrimination occurs where an apparently neutral provision puts persons of a particular gender... at a particular disadvantage in respect of any matter other than remuneration compared with other employees of their employer.
(b) Where paragraph (a) applies, the employer shall be treated for the purposes of this Act as discriminating against each of the persons referred to unless the provision is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.".
Section 31 of the Acts merely applies the above definition to the other eight discriminatory grounds proscribed.
5.5 In a recent decision the Labour Court held that it could not "conclude that a requirement to work full-time place women, per se, at a particular disadvantage relative to men. Such disadvantage may arise by the combined effect of the woman's gender and her family status and her marital status." . In doing so the Court merely echoed the views it expressed previously in NBK Designs Ltd. v Inoue when it also made clear that as an expert Tribunal, it is entitled to take account of the knowledge and experience of its members in concluding facts, a view it recently restated in Melbury Development Ltd v Arthur Valpetters . In applying this approach in the Inoue Decision the Labour Court found as a fact that a complainant, as a woman, a mother and the primary carer of a school-going child, was unable to work full-time and the requirement imposed on her by the respondent to do so was prima facie indirect discrimination of her. In the instant case the complainant was a woman and a mother and whilst not the sole carer of her child, the special medical needs of her child in the early months of life required significant periods of hospitalisation which placed significant added pressure on her.
5.6 There is no statutory entitlement for an employee on full-time hours to be accommodated with part-time work, or vice versa. This is clearly stated by the Labour Court in Bank of Ireland v Morgan when the Court held "that it would be manifestly unreasonable to hold that an employer must provide a woman with a facility to job-share in every case in which such a facility is requested and such a result could not have been intended. It is self evident that such facilities can only be made available within the exigencies of the business.". The Code of Practice on Access to Part-Time Working states (paragraph 8) "Best practice indicates that employers should treat such requests seriously and where possible discuss with their employees if and how such requests can be accommodated...". The Code goes on to state "In considering the application both the employer and employee should take account of all factors relevant to both the organisation and ... the applicant". Relevant factors include, inter alia, "the personal and family needs of the applicant; the number of employees already availing of part-time work; the urgency of the request and the effect, if any on the staffing needs of the organisation.". Paragraph 14 of the Code provides that in any proceedings before, inter alia, an Equality Officer any provision of the Code which appears relevant to the Equality Officer shall be taken into account in determining the issue at hand. However, the Code, inter alia, provides a framework for employers when dealing with applications for part-time employment and as such it must be interpreted in light of the corpus of caselaw in existence.
5.7 In the instant case the respondent was well aware of the personal and family needs of the complainant. It confirmed at the Hearing that there were no other employees on part-time work. The respondent was well aware of the urgency of the request - the complainant's circumstances had altered significantly from the time of her original request prior to her maternity leave as her child required considerable periods of hospitalisation. Having regard to my comments in this and the preceding paragraphs, I find that the complainant has established a prima facie case of indirect discrimination on the grounds of gender and family status, contrary to sections 22 and 31 of the Employment Equality Acts, 1998 and 2004. However, section 31(5) of the Acts provides that in circumstances where a respondent is regarded as indirectly discriminating against a complainant on grounds of gender and family status, a finding of discrimination can only be made on the gender ground. The respondent is therefore required to demonstrate to my satisfaction that the requirement on the complainant to work full-time is objectively justified in terms of section 22(1) of the Acts.
5.8 This provision requires the respondent to satisfy me that the requirement to work full-time constitutes a legitimate aim of the organisation and that the means of achieving that aim are appropriate and necessary. In the course of the Hearing Mr. O'Sullivan stated that he supported the complainant's application but that the three Directors of the respondent organisation refused it because it hadn't "worked out" in another of their business ventures. Mr. O'Sullivan also stated that he advanced a number of alternatives to the Directors which might offset their concerns, including retention of the person engaged to cover the complainant's absence on maternity leave, but they dismissed these suggestions. On the basis of the evidence presented I am satisfied that the respondent gave no real consideration to the complainant's application and its actions in this regard cannot be considered as reasonable in the circumstances. In addition, it has adduced no evidence to demonstrate that the need to have the complainant work full-time corresponded to a legitimate aim of the respondent and that this requirement was appropriate and necessary in the circumstances. Accordingly, I find that the respondent has failed to discharge the probative burden required of it - that the requirement to work full-time is objectively justified - and the complainant is entitled to succeed in this element of her complaint.
5.9 I shall now deal with the remaining elements of the complainant's equal treatment complaint. As I stated at paragraph 5.2 above the complainant must first establish facts from which it can be inferred that she was treated less favourably contrary to the Acts. Force majeure leave is an entitlement under parental leave legislation and this Tribunal has no function in adjudicating on disputes under that legislation. The complainant has failed to adduce evidence that the respondent treated her less favourably in comparison with a man or another employee with no family status in the manner in which it treated applications for force majeure leave and her claim therefore fails. I am satisfied that the respondent withdrew the voicemail facility from all employees in the Accounts Division in January/February, 2006 and that the single facility retained was for a specific purpose. I note the respondent offered alternatives to the complainant and in doing so departed form the policy in its Staff Handbook as regards personal phone calls. In rejecting these alternatives the complainant acted unreasonably and what she wanted was more favourable treatment as compared to her colleagues. I find therefore that she has failed to establish a prima facie case of discrimination in respect of this element of her complaint.
5.10 It is clear from the evidence adduced that the incident where Mr. O'Sullivan reprimanded staff for being absent from their desks and watching television was focussed at the group and not solely at the complainant. The incident with Ms. Morrissey concerning "clocking-in" took place approximately seven weeks after the aforementioned incident - on 9 May, 2006. The Tribunal was furnished with printouts of the clocking-in patterns of the complainant and Mr. A and it is clear that both were clocking-in at a location other than where they worked. Ms. Morrissey stated at the Hearing that she raised the issue with both employees, advising that the practice should cease. I am satisfied that this is the case because the records show that Mr. A ceased from that day onward. In the course of the Hearing Ms. Morrissey set out her version of what happened in the course of the discussion with the complainant on 9 May, 2006 and the complainant agreed this was an accurate reflection of what happened. On this basis I am satisfied that the meeting could not be considered a reprimand of the complainant and I note that no formal warning was given to her by Ms. Morrissey. Accordingly, I find that the events does not constitute less favourable treatment of the complainant contrary to the Acts.
5.11 The respondent's Staff Handbook requires employees to complete a prescribed "holiday request form" at least one month before the leave required is taken and to have the form approved by his/her Line Manager. The complainant, in applying for a days' unpaid leave (for 21 July, 2006) on 14 June, 2006 did not have her Line Manager approve the request. I am satisfied that the respondent had afforded the complainant significant latitude as regards the taking of paid and unpaid leave following her return from maternity leave and in doing so set aside certain requirements under the Staff Handbook. It is also clear to me that the requirement to apply for leave at least one month in advance can not always be complied with by employees as emergencies or unforeseen events arise and approval cannot always be obtained in advance. In this instance the respondent initially requested the complainant to furnish proof of the reason for the request for a days' unpaid leave - which it was entitled to do in accordance with the normal practice - and when the complainant raised the matter with Ms. Morrissey the matter was dealt with. However, it is clear the complainant was not happy with the request because she tendered her resignation within a short period thereafter. I am satisfied, on balance, that the circumstances surrounding Mr. A differ from the complainant's as his application involved a days' annual leave and in any event he did not work to Mr. O'Sullivan. Accordingly, I find that the complainant has failed to establish a prima facie case of discrimination in respect of this element of her complaint.
5.12 The complainant submits that she was constructively dismissed by the respondent on grounds of gender. She states that due to the treatment she suffered in the months following her return from maternity leave, culminating in the incident about the days' unpaid leave, she could take no more and tendered her letter of resignation on 20 June, 2006. The respondent submits that the complainant terminated her employment with it of her own volition and no dismissal occurred. Section 2(1) of the Acts defines dismissal as including:
"the termination of a contract of employment by an employee (whether prior notice of termination was or was not given to the employer) in circumstances which, because of the conduct of the employer, the employee was or would have been entitled to terminate the contract, without giving such notice, or it was or would have been reasonable for the employee to do so ...."
In An Employer v A Worker (Mr. O No.2) the Labour Court comprehensively addressed the issues of constructive dismissal under employment equality legislation. It noted that the above definition was practically the same as the definition of "dismissal" contained in the unfair dismissals legislation and held that the tests for constructive dismissal developed under that legislation - the "contract" test and the "reasonableness" test - were applicable tests under the Employment Equality Acts. In addition, the Court held "that what is reasonable is pre-eminently a question of fact and degree to be decided having regard to all the circumstances of the particular case".
5.13 In the instant case I am satisfied that the "reasonableness" test is the more appropriate. It requires the complainant to satisfy the Tribunal that the behaviour of the respondent was so unreasonable that she could not fairly be expected to put up with it any longer and she was therefore entitled to resign from its employment. The corpus of caselaw developed on this point requires the complainant, before taking the unilateral step of terminating her employment, to give the respondent the opportunity to address her grievance or complaint. The complainant confirmed at the Hearing that she did not invoke the respondent's Grievance Procedure and I am satisfied that the respondent was not therefore on notice of the complainant's issues - it was reasonable for it to assume that it had dealt with her previous concerns as they arose. The respondent's response to the complainant's letter of 20 June, 2006 was swift, responding that day inviting the complainant to a meeting two days later. The complainant was unable to say whether or not she met with Ms. Morrissey that day. In the course of the Hearing Ms. Morrissey gave evidence of the content of that discussion and furnished the Tribunal with a note of same. I am satisfied, on balance, that the meeting took place and that the complainant was not prepared to reconsider her decision. Her resignation was therefore premature and unreasonable in terms of grounding a complaint of constructive discriminatory dismissal. In light of the foregoing I find that the complainant has failed to establish a prima facie case of discriminatory dismissal in terms of the Employment Equality Acts, 1998 and 2004.
5.14 The final element of the complainant's claim concerns her assertion that she was victimised. section 74(2) of the Acts defines victimisation as follows:
"(2) For the purposes of this Part 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,.......
(f) an employee having opposed by lawful means an act which is unlawful under this Act.... or which was unlawful under any such repealed enactment, or
(g) an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs.
The complainant has failed to adduce any evidence which would discharge the initial burden of proof required of her to establish a case of victimisation and this element of her complaint must therefore fail.
6. DECISION OF THE EQUALITY OFFICER.
I have completed my investigation of these complaints and make the following Decision in accordance with section 79(6) of the Employment Equality Acts, 1998-2008.
I find that -
(i) the respondent discriminated against the complainant on grounds of gender, in terms of section 6(2) of the Employment Equality Acts, 1998 and 2004, and contrary to section 22 of those Acts in respect of her request a for part-time working arrangement on her return from maternity leave,
(ii) the complainant has failed to establish a prima facie case of discrimination on grounds of gender and/or family status, in terms of section 6(2) of the Employment Equality Acts, 1998 and 2004 and contrary to section 8 of those Acts, in respect of as regards the other aspects of her conditions of employment,
(iii) the complainant has failed to establish a prima facie case that she was dismissed by the respondent in circumstances amounting to discrimination on grounds of gender and/or family status, in terms of section 6(2) of the Employment Equality Acts, 1998 and 2004 and contrary to section 77 of those Acts,
(iv) the respondent has failed to establish a prima facie case that the respondent victimised her within the meaning of section 74 of the Employment Equality Acts, 1998 and 2004.
6.2 I must now deal with the issues of redress. In doing so I am mindful that sanctions for breaches of the principle of equal treatment must be effective, proportionate and dissuasive. The respondent discriminated against the complainant on grounds of gender when it failed to give her application for a part-time attendance pattern reasonable consideration following her return from maternity leave. However, I note that as an alternative, the respondent offered the complainant parental leave, but she declined same. This statutory period of leave could have been taken in short periods (with the agreement of the respondent) and would have contributed to alleviating some of the complainant's concerns and pressures at the time. I further note that the respondent granted the complainant in excess of 20 days' unpaid leave in the months following her return to work, the majority of which arose within the first two months of her return. The actions of the respondent in this regard clearly assisted the complainant to deal with the pressures she was encountering at the time. Having regard to all of the circumstances of the case I am satisfied that the sum of €5,000 is an appropriate award and in accordance with my powers under section 82(1) of the Employment Equality Acts, 1998-2008 I order that the respondent pay the complainant that sum by way of compensation for the distress suffered by her as a consequence of the discrimination. This award does not contain any element in respect of remuneration and is therefore not subject to PAYE/PRSI. In addition, I order that the respondent introduce, within four months of the date of this Decision, a procedure to deal with applications for all job sharing or part-time working arrangements application which fully accords with the Code of Practice on Access to Part-Time Working and that this procedure is included or referenced in the Staff Handbook.
_______________________________
Vivian Jackson
Equality Officer
20 November, 2009