The Equality Tribunal
Employment Equality Acts
Decision DEC-E2011-253
PARTIES
Barbara Myles
- V -
Smarmore Castle Leisure Limited (in liquidation)
File reference: EE/210/888
Date of issue: 22 December 2011
Keywords - Employment Equality Acts - Discriminatory Treatment - Gender - Prima facie case
1. DISPUTE
1.1 This dispute concerns a claim by Ms Barbara Myles that she was subjected to discriminatory treatment by the respondent on the grounds of gender in terms of section 6(2) of the Employment Equality Acts (hereafter referred to as 'the Acts'), and contrary to section 8 of those Acts.
1.2 The complainant referred a claim of discrimination to the Director of the Equality Tribunal on 29 November 2010 under the Acts. On 27 June 2011, in accordance with his powers under section 75 of the Acts, the Director 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 4 October 2011. 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 for about four years up to January 2011 and that she informed her employer by phone that she was pregnant on 17 August 2010. The complainant submitted that upon hearing that Ms Myles was pregnant, the Leisure Centre Manager told her that she had to go on health and safety leave as the respondent's insurance company would not cover her to work while she was pregnant.
2.2 The complainant submitted that this phone-call was followed up by a face to face meeting, where the complainant told her manager that she thought that putting her on health and safety leave was ridiculous as she was fit and healthy. The complainant also submitted that she was told that she would have to switch to evening shifts so that there was another staff member present. The complainant submitted that this didn't suit her. The complainant also submitted that her manager informed her that she would check out the situation with their insurance providers.
2.3 The complainant submitted that two days later, her manager spoke to her again and informed her that the insurance broker had changed insurance providers and that she needed to have her GP complete a risk assessment form for her. The complainant submitted that this seemed like an unusual request to her and that she was extremely anxious as to whether she would be allowed to continue in her position.
2.4 The complainant submitted that when she actually received the form she was convinced that the Manager was trying to get her to take health and safety leave and that she was now trying to get her doctor to be the one to say that the complainant wasn't able to do her job.
2.5 The complainant submitted that after she received the risk assessment form she queried why it contained some duties that she had never been asked to perform and some activities which made no sense, e.g. lying on tummy (while leading exercise classes). When the complainant asked how much of it had to be completed positively by her doctor, the Manager would not discuss the matter, in case the complainant might influence her doctor.
2.6 The complainant submitted that the risk assessment was revised and that her manager would not give her the revised version until she returned the first draft.
2.7 The complainant submitted that on one occasion her manager took her to task over toilets not being cleaned properly, but did not take her male colleague similarly to task.
2.8 The complainant submitted that her doctor complained about completing the risk assessment and stated that he felt that someone should actually pay for it to be completed as it wasn't part of the ante natal check-up.
2.9 The complainant submitted that she was required to take her statutory annual leave and other leave and that she was only allowed to carry over five 'floating' days while a male member of staff was allowed to carry over more 'floating' days.
2.10 The complainant submitted that her manager had an argument with her over the number of leave days taken and the dates of them and submitted that, as they were her leave days, she should know when she had taken them off.
2.11 The complainant submitted that five months of her pregnancy were spent worrying about the security of her job when she should have been able to look forward to the birth of her baby without this trouble.
3. SUMMARY OF THE RESPONDENT'S CASE
3.1 The respondent submitted that the complainant was employed as a fitness instructor since 2005 and that she commenced maternity leave in January 2011. The respondent went into liquidation while the complainant was on maternity leave and all employees were made redundant. Accordingly, the complainant did not return to employment with the respondent.
3.2 The respondent submitted that, on 17 August 2010, the complainant rang the Leisure Centre Manager, Ms A, to inform her that she was pregnant. Ms A advised the complainant that she would have to inform the insurance company that an employee was pregnant, and that they would have a discussion later on the possibility of health and safety leave. The respondent had previously had occasion to place employees on health and safety leave as a result of pregnancy and provided documentary evidence in support of this contention to the Tribunal.
3.3 The respondent submitted that it got back to the complainant two days later when it had conferred with the insurance provides. The respondent confirmed to the complainant that their insurance providers had changed and that she did not automatically have to take health and safety leave but that she would have to complete a risk assessment. The respondent further submitted that during this conversation, it was explained to the complainant that the company had a duty of care towards her and that this necessitated the risk assessment being carried out.
3.4 The respondent submitted that on 4 September 2010, Ms A spent 45 minutes drafting a risk assessment with the complainant. The complainant wanted to take home the document to read through it and on 8 September an addition discussion took place lasting 90 minutes. At this latter meeting, the complainant again queried the necessity of a risk assessment and it was explained to her that the respondent had a duty of care towards her and her colleagues and the club members, to ascertain how any risks could be minimized or eliminated. The complainant queried why every possible duty of all staff members was included and it was explained to her that it had always been the case that all staff members should be available to carry out all duties.
3.5 The respondent submitted that the complainant was furnished with the finalised risk assessment on 11 October 2010 (Ms A having been on leave for two weeks). In turn the complainant advised the respondent that her GP was on leave and that she would prefer that a locum not complete the form. She was advised that it would be fine to return the form later.
3.6 The respondent noted that the complainant informed it that her GP was unhappy at filling out the risk assessment and wanted to know who would pay for it. The complainant was informed that if her GP had a difficulty with it, she could be directed to a doctor nominated by the insurance company, but indicated that she would have her GP complete the form. Once again, the complainant raised the need for completing the risk assessment but was informed about the duty of care upon the respondent. The complainant submitted the completed risk assessment on 29 October 2010.
3.7 The respondent submitted that Ms A mentioned receipt of the letter from the Equality Tribunal notifying them of the complaint to the complainant and queried whether she had received permission to copy confidential documentation, i.e. the cleaning rota sheets, and querying whether she had informed any of the other employees named on the sheets that she was submitting a claim.
4. FINDINGS AND CONCLUSIONS OF THE EQUALITY OFFICER
4.1 The issue for decision by me is whether or not complainant was subjected to discriminatory treatment by the respondent on grounds of gender, in terms of section 6 of the Acts and contrary to section 8 of those Acts.
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 The entire period of pregnancy and maternity leave constitutes a special protected period as outlined in the European Court of Justice decisions in Webb v EMO Air Cargo (UK) Ltd [1994] ECR 1-3567, Brown v Rentokil Ltd[1998] ECR 1-04185 and Dekker v Stichting Vormingscentrum [1990] ECR 1-3941. Furthermore, it is settled law that where discriminatory treatment takes place during that special protected period, it raises a prima facie case of discrimination on the gender ground.
4.4 In the instant case it is accepted that the complainant was pregnant and that the respondent was aware of that pregnancy. However, the issue for consideration by me is whether the complainant was subjected to discrimination by the respondent.
4.5 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 ...".
4.6 Upon being informed of the complainant's pregnancy, the respondent told her that she would have to take Health & Safety Leave as that is what the most recent employee to become pregnant had to do.
4.7 The complainant refused to take this leave and sought to clarify this issue, the respondent confirmed that it would clarify matters and revert. The respondent reverted within two days and informed the complainant that, as it had changed insurers in the meantime, she would not be required to take Health & Safety Leave, but that a risk assessment needed to be completed by her. Over the space of the next four weeks, a risk assessment was drawn up, the first draft of which was given to the complainant and her comments were taken into account when finalising the risk assessment. The duties included in the risk assessment included acts which the complainant did not normally carry out, but which, in oral testimony, she confirmed that she undertook on occasion. The respondent stated that it had a duty of care to the complainant and to her unborn child and was obliged to carry out a risk assessment.
4.8 The complainant was informed that she had to take a number of days of her leave allowance off. The respondent clarified that the complainant, along with another (male) member of staff, was told to take some days off in the context of reducing the number of days carried over by all staff. In the event of the liquidation, the male staff member referred to lost a number of days that he had accrued up to that point.
4.9 The complainant stated that she was taken to task over the cleanliness of some of the areas she dealt with on one occasion.
4.10 The complainant stated that she was asked to put her personal medication away in her bag rather than leave it on the reception counter where customers gathered.
4.11 Having considered the treatment complained of, I am not satisfied that the complainant has established that she was treated in a less favourable manner. With regards to the risk assessment, I am satisfied that in the circumstances put forward, the respondent's request for the complainant to complete a risk assessment does not amount to less favourable treatment. Notwithstanding this, the respondent would appear to have an obligation under Health & Safety legislation to conduct a risk assessment where it is informed that an employee is pregnant.
4.12 In all the circumstances of this case, I am not satisfied that the complainant has established, in the first instance, facts from which discrimination may be inferred. Accordingly, I find that the complainant has not established a prima facie case and this 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 gender ground has not been established and this complaint fails.
Conor Stokes
Equality Officer
22 December 2011