The Equality Tribunal
Employment Equality Acts
Decision DEC-E2010-020
PARTIES
McElwee
- V -
Laker Pharmaceutical Ltd
(Represented by Christina Ryan, BL,
instructed by Ivor Fitzpatrick & Co, Solicitors)
File reference: EE/2007/022
Date of issue: 24 February 2010
Keywords - Employment Equality Acts - Discriminatory Treatment - Victimisation - Family Status - Prima facie case
1. DISPUTE
1.1 This dispute concerns a claim by Ms Carla McElwee that she was subjected to discriminatory treatment by Laker Pharmaceutical Limited on the grounds of family status in terms of section 6(2) of the Employment Equality Acts (hereafter referred to as 'the Acts'), and contrary to sections 8 of those Acts. The issue of victimisation, as outlined in Section 74 of the Acts, was also raised by the complainant in her written submission.
1.2 The complainant referred a claim of discrimination to the Director of the Equality Tribunal on 18 January 2007 under the Acts. On 7 May 2009, in accordance with her powers under section 75 of the Acts, the Director then delegated the case to Conor Stokes - an Equality Officer - for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts on which date my investigation commenced. Submissions were sought and received from the parties. As required by Section 79(1) and as part of my investigation, I proceeded to hearing on 21 January 2010. All written and oral evidence presented to the Tribunal has been taken into consideration when coming to this decision.
2. SUMMARY OF THE COMPLAINANT'S CASE
2.1 The complainant submitted that she was employed by the respondent as a Stoma care nurse since August 1993. She submitted that at the initial interview she was asked if she intended getting pregnant in the near future, as the respondent couldn't employ someone who would. The complainant submitted that the respondent refused to pay her while she was on maternity leave. The complainant further submitted that when she returned from maternity leave in 2001 she was told that a full-time position no longer existed and that she could work part-time.
2.2 The complainant submitted that when she returned from her second and third maternity leave periods, she had to re-negotiate her hours and salary. The complainant further submitted that she asked to take parental leave in the Summer of 2006 but the request was refused.
2.3 The complainant submitted that as she was owed a lot of days in lieu, which the respondent hadn't paid her for, the respondent agreed that she could take back time in July and August on condition that she covered the respondent's two-week period of annual leave.
2.4 The complainant submitted that during this period she was doing the work of three people. The complainant further submitted that following this period, she in turn took leave.
2.5 The complainant submitted that when she returned from leave at the end of August, 2006, she was called into the respondent's office, and he was very angry. The complainant submitted that at that meeting the respondent said a number of things: that there were complaints made against the complainant; that he needed a full-time nurse and that the part-time position didn't suit anymore; that he wouldn't let her work similar hours anymore; that he was sick of her and her family; and that the complainant had lied about the extra time she had worked. The complainant further submitted that the respondent did not follow any disciplinary procedure.
2.6 The complainant submitted that following that meeting she was so upset and stressed by the respondent's behaviour towards her that she couldn't attend work and sent in doctors certificates. The complainant submitted that she was advised that she was entitled to redundancy as the respondent had changed her terms and conditions.
2.7 The complainant submitted that the respondent initially refused to meet her and then refused to pay her redundancy. The complainant further submitted that she remained on sick leave for six months and after a long battle, the respondent eventually agreed to pay her the minimum amount that she was due.
2.8 The complainant submitted that the respondent refused to give her a reference unless she dropped the case before the Tribunal.
3. SUMMARY OF THE RESPONDENT'S CASE
3.1 The respondent denied that the complainant was discriminated against on grounds of her family status or at all. The respondent submitted that the complainant's claim is without merit.
3.2 The respondent submitted that it employs 13 individuals and is engaged in the provision of Stoma care and the running of a retail pharmacy. The respondent denied that the complainant was asked at her interview in 1993 whether she intended getting pregnant. The respondent denied that the complainant was the only employee with minor children at the time of the taking of the complaint.
3.3 The respondent agreed that the complainant was not paid by it whilst out on maternity leave on the first two occasions that she took maternity leave. The respondent denied informing the complainant upon her return to work, following maternity leave, that she had to work on a part-time basis and asserted that it was the complainant who sought that arrangement. The respondent denied that the complainant had to renegotiate her hours and salary upon her return from maternity leave or at all.
3.4 The respondent submitted that the complainant's request for parental leave in June 2006 was not denied as alleged or at all. The respondent also submitted that it was the usual practice for the complainant to cover the respondents holiday leave. The respondent further submitted that it was the custom and practice of the respondent to have a meeting with the complainant after the holiday period in order to discuss patient issues.
3.5 The respondent denied that it had changed the complainant's terms and conditions of employment. The respondent submitted that there were a number of attempts to resolve matters, but ultimately they were unsuccessful.
3.6 The complainant was made redundant in April 2007. The respondent denied that it refused to give the complainant a reference as alleged or at all.
4. FINDINGS AND CONCLUSIONS OF THE EQUALITY OFFICER
4.1 The issue for decision by me is whether or not the respondent discriminated against Ms McElwee on the ground of family status, in terms of section 6 of the Acts and contrary to Section 8 of those Acts. The issue of victimisation was raised in the complainants written submissions and refuted in the respondents written submissions. Accordingly, the matter of victimisation as outlined in Section 74 is also an issue for me to decide upon.
4.2 Section 85A of the Acts sets out the burden of proof which applies to claims of discrimination. It requires the complainant to establish, in the first instance, facts from which discrimination may be inferred. 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.
4.3 In the case of Dyflen Publications Limited and Ivana Spasic (ADE/08/7) the Labour Court, in adopting the approach of Mummery LJ in Madrassy v Nomura International plc [2007] IRLR 246, stated that "... the court should consider the primary facts which are relied upon by the complainant in their proper context. It also indicates that in considering if the burden of proof shifts the court should consider any evidence adduced by the respondent ...".
Discriminatory Treatment
4.4 The basis of the complainants claim is that she was treated less favourably than others on the basis of her family status. In her written submissions the complainant submitted a number of examples in support of this contention, some historical and some which fall within the timeframe laid down by the Acts. Both the complainant and the respondent gave oral testimony on these matters.
4.5 The complainant alleged that, in 1993 at her initial recruitment interview, she was asked whether she intended to get pregnant in the near future. The respondent strenuously denied this and outlined the circumstances of the interview that took place at that time. I prefer the respondent's version of events and, accordingly, do not find that this issue was raised in that interview.
4.6 The complainant alleged that she was not paid for her maternity leave. The respondent accepted that this was the case for her first two periods of maternity leave but stated that there is no requirement to pay an employee on maternity leave, as the period is covered by the relevant authorities. The respondent stated that it did pay the complainant for her third period of maternity leave. This was not contested by the complainant. Accordingly, I find that the respondent did not treat the complainant in a less favourable manner in relation to this element of the complaint.
4.7 In her written submissions, the complainant alleged that when she returned from her first maternity leave, she was told that her full-time position no longer existed and that she could work on a part-time basis. However, in oral testimony the complainant stated that she sought, and was granted, the part-time arrangement.
4.8 The complainant submitted that she had to renegotiate her hours and salary following her return from maternity leave, this was denied by the respondent.
4.9 In her written submissions, the complainant alleged that in the Summer of 2006 she sought parental leave but was refused. However, in oral testimony the complainant stated that she never sought parental leave at that time.
4.10 In her written submissions, the complainant alleged that she sought to take leave in July and August and was only granted permission to take the leave on condition that she covered the respondent's two week leave period. In oral testimony, the respondent stated that the norm for the complainant to cover the respondents patient responsibilities for the duration of the two week annual leave period and that the respondent covered the complainant's patient workload during her periods of leave. This was not contested by the complainant.
4.11 In her written submissions, the complainant made a number of allegations concerning the meeting that took place on the morning of 28 August 2006. The allegations were reiterated in the complainant's oral testimony. The allegations were denied by the respondent who gave an account of the meeting which differed from that of the complainant. Having considered both versions of what transpired at that meeting, and taking the credibility of both the complainant and the respondent into account, I prefer the respondent's version of events.
4.12 The complainant stated that the respondent refused to meet her and refused to pay her redundancy. In response, the respondent stated that it initially would not meet with complainant to discuss work related issues as the medical certificates submitted by the complainant cited work-related stress as the reason for the certificate. In addition, the respondent submitted that it did not consider that the complainants situation was one which warranted redundancy, therefore it was not willing to consider this option at that time.
4.13 During the hearing, both the complainant and the respondent gave direct oral testimony and that evidence was tested by cross-examination and questioning by the Equality Officer. The complainant lacked credibility and her account was not consistent with her written submissions or the documentation submitted by either party. The respondent came across as being wholly credible, gave consistent answers and the testimony was compatible with the documentary evidence to hand. Two witnesses also gave evidence on behalf of the respondent. The first witness came across as very hostile personally towards the complainant for no apparent reason and accordingly I am not attaching significant weight to her testimony. The second witness gave testimony in a clear, precise and unbiased manner and her testimony was consistent with the respondent's evidence. I also note that the complainant admitted in direct evidence that the respondent was a "very good employer". Having considered the evidence presented to me, I prefer the respondent's version of events. Therefore, I find that the complainant has failed to establish facts from which discrimination may be inferred and this element of the complaint fails.
Victimisation:
4.14 In her written submissions, the complainant alleged that the respondent refused to give her a reference unless she dropped the case before the Tribunal. In her oral testimony, the complainant stated that a friend told her that the respondent refused to give her a reference unless she dropped the case before the Tribunal. The respondent disputed that it had ever spoken to the named person. As this third party was not present at the hearing, I am not in a position to assess the veracity or otherwise of this allegation. Accordingly, I cannot find evidence to support a claim of victimisation and this element of the complaint fails.
5. DECISION
5.1 Having considered all the written and oral evidence presented to me, I find that a prima facie case of discriminatory treatment on the basis of the family status ground has not been established and this complaint fails.
5.2 Having considered all the written and oral evidence presented to me, I find that a prima facie claim of victimisation on the basis of the family status ground has not been established and this element of the complaint also fails.
Conor Stokes
Equality Officer
24 February 2010