HSD104

Background:

The Complainant, Ms Lisa Farrell (represented by Ms. Ciara O’Duffy B.L instructed by Gerrard L. McGowan Solicitors) commenced employment on a full time basis with the Respondent, Margaret Bailey trading as Finesse Beauty Salon (represented by Sile O’Kelly Merrick B.L instructed by Farquharson & Company Solicitors) on 1st April 2007. The Complainant was employed as a beauty therapist.

In essence the Complainant states that when she told her employer that she was pregnant and could only work part-time due to difficulties with previous pregnancies, the employer made it impossible for her to do so, and left her with no alternative but to resign This she alleges constituted penalisation under Section 27 (3) of the Act.

Position of the parties:

The Complainant alleges that in May 2008 she notified the Respondent that she was pregnant and was expecting a baby in January 2009. She states that as a consequence and because of her medical history she verbally requested permission to reduce her working hours. The Respondent admits that she was informed of the pregnancy but denies that any such request was made at that time.

On June 3rd the Department of Social and Family Affairs wrote to the Respondent pursuant to Section 255(1) of the Social Welfare Consolidation Act 2005 seeking details of the Complainant’s earnings commencing 1st January 2007 to date “to enable determination or review of a claim to any benefit by or in respect of that person ……” The Complainant submits that she was unaware of the letter and states that she took no action that would cause such a letter to be issued. The Respondent having received the letter was of the view that the Complainant had “jumped the gun” on a claim for benefit, particularly in view of the fact that insofar as the Respondent was concerned they had received no request for part-time work from the Complainant. The Respondent raised this letter with the Complainant the following day. She denied any knowledge of the letter.The Complainant formally wrote to the Respondent in or around mid June 2008 seeking a transfer to reduced hours as she had a history of complicated pregnancies. The Complainant supplied the Respondent with reports from her GP and from Our Lady of Lourdes Hospital in Drogheda recommending reduced working hours because of the risks associated with the pregnancy.

The Complainant continued working until 17th June, 2008. On that day the Respondent replied to the Complainant advising her that she had taken advice and that she was not obliged to facilitate the Complainant’s request for reduced hours. She further indicated that she would be consulting her insurance company on the matter and sought permission to speak to the Complainant’s Doctors directly to establish if she should be at work at all.

On 18th June, 2008 the Complainant telephoned the Respondent and advised her she was sick that day. The Respondent paid the Complainant until 20th June, 2008 and included in the amount two-and-a-half days' holiday pay to which she was entitled. The Complainant did not return to work thereafter. A Medical Certificate dated the 9th of June, 2008 indicating that the Complainant was unfit for work for one month was handed to the Respondent on 27th June 2008.

Correspondence between the Complainant and the Respondent through their respective Solicitors ensued. This correspondence dealt largely with requests for information on risk assessments carried out by the Respondent.

On July 9th 2008 the Respondent submitted a further Medical Certificate stating that she was unfit for work for a further month.

The Respondent finally advised the Complainant on 20th June, 2008 that she could not accommodate the Complainant’s request for reduced hours as she operated a small salon, it was the busiest time of the year and the demands of the business could not accommodate it.

The Complainant subsequently requested her P45 and commenced proceedings against the Respondent.

The Complainant submitted a complaint to the Rights Commissioner alleging penalisation under Section 27 of the Act. She also brought complaints under the following statutory provisions :

The Maternity Protection Acts 1994 and 2004

The Safety Health and Welfare at Work Act 2005

The Safety, Health and Welfare at Work Act (Pregnant Employees) Regulations SI 218/2000.

All of these complaints were essentially grounded on the same set of facts.

The Complainant submitted that she was penalised as a result of the: -

• Respondent’s failure to facilitate her request to reduce her weekly working hours the need for which was supported by medical evidence
• The Respondent’s failure to offer an alternative solution as she was obliged to do by virtue of Section 18 of the Maternity Protection Act 1994
• The Respondent’s failure to carry out a risk assessment exercise to ensure that the Complainant was not exposed to anything that would damage either her health or that of her developing child
• Leaving the Complainant in a position whereby she had to work full-time or not at all.

The Rights Commissioner decided for the Complainant. He found that she had been penalised as a result of the Respondent’s failure to give real consideration to her need to reduce her working hours for health and safety reasons or to consider alternative solutions. Having regard to the circumstances he required the Respondent to pay the Complainant the sum of €5,000.

The Respondent appealed the decision to the Labour Court pursuant to Section 29(1) of the Act. The Complainant appealed the quantum awarded by the Rights Commissioner.

Submissions of the Parties:

Ms Sile O’Kelly-Merrick BL submitted on behalf of the Respondent that it had been given very short notice of the Complainant’s request for short time working. The Complainant had notified the Respondent that she was pregnant early in May 2008. She indicated that the pregnancy might be high risk as she had two ectopic pregnancies in the past. However, at that time there was no fear of another ectopic pregnancy.

Ms O’Kelly-Merrick submitted that no request for short-time working was submitted at this time and no medical evidence was submitted to the Respondent in support of such a request. On Tuesday 10th June, 2008 the Respondent received a letter dated 3rd June, 2008 from the Department of Social and Family Affairs seeking details of the Complainants earnings commencing in 2007 to enable it assess her entitlement to benefit. The first request for short-time work was submitted on 12th June, 2008 without any supporting medical evidence The Complainant merely informed the Respondent that she was reducing her working week to three days and would claim the balance from the Department of Social and Family Affairs. The Respondent said she could not, for business reasons, accommodate the Complainant with reduced hours.

Formal notification to the Respondent that the Complainant should work reduced hours was by letter dated 16th June 2008 from Our Lady of Lourdes Hospital and an undated letter from the Complainant’s General Practitioner that appeared, from its contents, to have been composed at a date later than the Hospital letter had been prepared.

In addition,on 17th June, 2008 the Complainant submitted an undated note to the Respondent claiming that she had requested short time work as early as six weeks earlier. The Respondent disputed that any such request had been made.

The Complainant and the Respondent met on 20th June, 2008. The Respondent sought Medical Certificates to cover her absence from work. The Complainant said she was on sick leave and thereafter would go directly on maternity leave. That was the last time the Respondent met the Complainant.

The Complainant subsequently sought her P45 and considered herself to have been dismissed.

The Respondent submitted that at no time did she consider the Complainant to be dismissed. The Complainant had retained the keys of the shop and up to the time she requested her P 45 the Respondent expected her back to work after her maternity leave.

The Respondent submitted that the letter from the Department of Social and Family Affairs suggested that the Complainant had made arrangements for short time working before raising the matter with her employer. In this regard the Respondent submitted that the Complainant sought to impose conditions on her employer and that she had no entitlement to do so.

Ms O’Duffy submitted on the Complainant's behalf that the Respondent was notified in early May 2008 that the Claimant was pregnant and needed to restructure her working hours as, given her medical history, her pregnancy was high risk. The Respondent failed to act for six weeks. This led the Complainant to commit to writing the details of the conversation that had taken place with the Respondent in May. In June the Complainant submitted medical evidence in support of her request for reduced hours. She noted that her preferred option was to work for three days and to rest for four days each week and that this was acceptable to her doctors and consistent with the medical certificates. She proposed working three long days to accommodate the demands of the business. She was mindful of the pressure the business would be under at that time of year. She denied any knowledge of the letter from the Department of Social and Family Affairs and noted that she was not entitled to welfare benefit as she had not accumulated any entitlement in that regard. Accordingly, any suggestion that the Complainant had "jumped the gun" or was attempting to determine her own hours was wrong and not in accordance with the facts. She submitted that she was acting on the best medical advice available to her and nothing more.

Ms O'Duffy further submitted that the Respondent failed to carry out a risk assessment as required by the Act. She submitted that the Respondent had ample opportunity to consider alternative employment arrangements for the Complainant and had failed to do so. She submitted that the only alternative put to the Complainant was full-time work or no work and that this in effect amounted to penalisation within the meaning of Section 27 of the Act. From the overall behaviour of the Respondent the Complainant was entitled to conclude that she had been dismissed as a result of her request for reduced hours on health and safety grounds and the employer's failure to carry out a proper risk assessment and that this was in breach of Section 27 of the Act.

Findings

The relevant parts of Section 27 provide as follows: -

27.—(1) In this section “penalisation” includes any act or omission by an employer or a person acting on behalf of an employer that affects, to his or her detriment, an employee with respect to any term or condition of his or her employment.

(2) Without prejudice to the generality ofsubsection (1), penalisation includes—

• (a) suspension, lay-off or dismissal (including a dismissal within the meaning of the Unfair Dismissals Acts 1977 to 2001), or the threat of suspension, lay-off or dismissal,

• (a) acting in compliance with the relevant statutory provisions,

  (b) performing any duty or exercising any right under the relevant statutory provisions,

  (c) making a complaint or representation to his or her safety representative or employer or the Authority, as regards any matter relating to safety, health or welfare at work,

(5) If penalisation of an employee, in contravention ofsubsection (3), constitutes a dismissal of the employee within the meaning of the Unfair Dismissals Acts 1977 to 2001, relief may not be granted to the employee in respect of that penalisation both under this Part and under those Acts.

Section 28 of the Act provides for Complaint under the Act to be made to a Rights Commissioner and Section 29 of the Act, inter alia, provides for the Labour Court to consider an appeal from a Decision of a Rights Commissioner.

The Court’s jurisdiction under this Act is very limited and circumscribed. Section 27 is quite narrow in its application. The Section only applies where an employer penalises or threatens penalisation against an employee for making a complaint or representation to their employer as regards any matter relating to safety, health or welfare at work. Penalisation of an employee for other reasons does not come within the scope of Section 27 of the Act nor indeed does an employer’s failure to meet its obligations to an employee under the Act.

The Complainant and the Respondent had a discussion in early May 2008 to the effect that she was pregnant. Whether or not the Complainant sought reduced hours in the course of this conversation is the subject of dispute between the parties. It is, however, common case that the Complainant did advise the Respondent that she had a history of difficult pregnancies. At that time no medical evidence as to what revised working arrangements might be needed were presented to the Respondent. According to the Respondent the first she knew of any requirement on the part of the Complainant to work part-time was when she received the letter from the Department of Social and Family Affairs. Even though the complainant had a Medical Certificate from the 9th of June, 2008 no formal medical evidence was presented to the Respondent until after 16th June 2008 the date on which Our Lady of Lourdes Hospital wrote the note supporting a reduced working week for the Complainant. After the meeting on the 17th of June, 2008 when the Respondent informed the Complainant that she could not give her the option of part-time work the Complainant went sick and did not return to work thereafter.

Correspondence between solicitors for both parties ensued. The thrust of this exchange of correspondence related to the request for reduced hours submitted by the Complainant and the Respondent's indication that she could not facilitate her in this regard and the request for details of the risk assessment the Respondent is required to carry out under the Act. However, in the Court’s view this correspondence is moot. Failure to carry out a risk assessment, while it could be a breach of the Respondent's duties under the Act, does not of itself constitute penalisation.

What the Court must consider is whether or not the refusal of the Respondent on the 17th June, 2008 to accommodate the Complainant's request for part time work, such a request now having been supported by medical evidence, constituted penalisation within the meaning of Section 27 of the Act.

Section 27(1) of the Act, provides that any “act or omission” by an employer that “affects, to his or her detriment, an employee with respect to any term or condition of his or her employment” constitutes penalisation, The Court is satisfied that in certain circumstances a refusal to accommodate an employee with reduced working hours could constitute penalisation.

However, an employer may refuse to facilitate an employee with reduced working hours for other reasons that are related to business or other needs and may not constitute penalisation. One does not automatically follow from the other and each case must be determined on its own facts. The obligation on the employer is to give due consideration to the alternatives available.

The Court is essentially asked to determine, on the evidence available to it, whether or not the Respondent refused to accommodate the Complainant with reduced working hours primarily as a result of a complaint or representation she made about a matter relating to safety, health or welfare at work.

On the evidence presented the Court can find no grounds for reaching such a conclusion. The Respondent was running a small salon at the busiest time of the year and was already facing a reduction in her staffing complement as a result of another employee commencing maternity leave. Whether or not she gave the matter sufficient consideration or came to the wrong conclusion having done so is not the determining factor. To be in breach of Section 27 of the Act the Respondent would have had to come to such a conclusion because the Complainant made a complaint or representation on a matter relating to safety health or welfare at work. From the evidence before it the Court finds that the Respondent’s decision was not related to any representation or complaint made by the Complainant but was made for other unrelated reasons.

Determination:

The Court upholds the Respondent's appeal and sets aside the Decision of the Rights Commissioner.

Signed on behalf of the Labour Court



Brendan Hayes
11th August, 2010______________________
DNDeputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to David P Noonan, Court Secretary.