THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998 to 2011
Decision DEC - E2011 - 258
PARTIES
Ms Lisa Farrell
(represented by Ms Ciara O'Duffy, B.L.,
instructed by Gerrard L. MacGowan, solicitors)
and
Finesse Beauty Salon
(represented by Ms Sile O'Kelly-Merrick, B.L.,
instructed by Farquharson & Co., solicitors)
File Reference: EE/2008/771
Date of Issue: 22nd December, 2011
Headnotes: Employment Equality Acts, section 6, 8 - Section 6(2)(a), Gender Ground
1. Dispute
1.1. This case concerns a complaint by Ms Lisa Farrell (hereinafter referred to as "the complainant") that she was discriminated against by Finesse Beauty Salon (hereinafter referred to as "the respondent") on the grounds of gender and disability, in terms of section 6(2)(a) and 6(2)(g) of the Employment Equality Acts, 1998 to 2008 ("the Acts") in relation to access to employment, conditions of employment and dismissal, contrary to Section 8(1)(a), 8(1)(b) and 8(6)(c) of the Acts.
2. Background
2.1 The complainant referred a complaint under the Acts to the Director of the Equality Tribunal on 14th November, 2008, alleging that the respondent had discriminated against her on the grounds of gender and disability.
2.2 Written submissions were received from both parties. On 26th April, 2011, in accordance with his powers under section 75 of the Acts, the Director delegated the case to me, Gary O'Doherty, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions under Part VII of the Acts, on which date my investigation commenced. A hearing of the complaint was held on 13th October, 2011. Further information was sought from the parties after the hearing and final correspondence in this respect was received on 9th December, 2011.
3. Summary of the Complainant's case
3.1. The complainant stated that she worked for the respondent as a beauty therapist. She stated that she notified the respondent that she was pregnant on 6th May, 2008. She stated that, on that day, she also told it that she had been given medical advice that her working hours should be reduced as she had a high-risk pregnancy. She outlined the reasons why that was the case. She stated that Ms A, the Director of the respondent, responded by saying that she would have to leave it with her and they would work something out.
3.2. The complainant said that a couple of weeks went by and she was still working full-time. She said she thought of raising the issue with Ms A in the meantime and said she may have brought it up "in a coffee". She said that the next time she recalled that she definitely spoke with Ms A about the matter was sometime in the second or third week of June when she asked her what she was going to do to reduce her hours. She said that Ms A responded by saying that there was no part-time position available to her. She said that she was extremely upset after this conversation but denied Ms A's account of this conversation. She also denied the respondent's submission that she did not inform it of her requirements to work part-time hours until this conversation.
3.3. The complainant stated that she then sought legal advice and wrote to the respondent on 17th June attaching correspondence from her doctors which outlined the reasons for the request for part-time working hours. She provided copies of this correspondence to the Tribunal.
3.4. The complainant said that she met with Ms A again on 20th June when she said she again raised the issue of obtaining part-time hours. She said that Ms A's response was that she should accept a full-time position or nothing at all. She agreed she had suggested she work Thursday, Friday and Saturday but that she "blurted this out" as she thought she could show compassion for the respondent's position by doing so and thought it would be a good compromise. She denied telling Ms A that working fewer hours each day didn't suit her. Indeed, she said she would have accepted such an offer if it had been made to her.
3.5. The complainant said that, following this conversation, she felt that she had no other option but to leave her employment with the respondent. She stated that she was constructively dismissed in that context. In response to the respondent's submission that it was "under the illusion" that the complainant was returning to work, she said that the respondent told her she should request a P45 from it. In that context, she said that she could not see how the respondent thought she was going to return to work. (She said that she had not been in a position to look for work since and so did not take up the respondent's invitation to obtain her P45). She said that she had no further communication with the respondent except through legal advisors. This correspondence was copied to the Tribunal. She said that she also provided her medical certificates to the respondent at Ms A's request.
3.6. The complainant said that, at some stage, she also spoke with Ms A about carrying out a risk assessment and about whether she would be provided with health and safety leave if such was required but denied she wanted three weeks money in lieu of health and safety leave. She said that Ms A told her that there was no need for a risk assessment and she wouldn't be able to pay her for health and safety leave. She also said that Ms A told her that it would probably be best to go "on the sick" if she wasn't able to work. The complainant said that she responded by saying that she was able to work but needed to reduce her hours. She also said that Ms A told her she had "made a boo-boo" by saying her pregnancy was high-risk because of the insurance issues that arose as a result. She was not sure whether these conversations took place on 20th June or earlier.
3.7. The complainant added that she did not receive any contract of employment or information about her maternity rights from the respondent. She denied she sought to dictate her hours to the respondent. She also stated that no effort was made by the respondent to hire a part-time worker for the time the complainant could not work.
3.8. In summary, the complainant stated that she was fit to work, albeit on a part-time basis, but the respondent considered that she was "trouble". She submitted that the respondent was not willing to employ her at all because she was an insurance risk. She submitted that it failed to attempt to reduce her hours and thus made it impossible for her to continue her employment with the respondent. In short, she submitted that the respondent directly discriminated against the complainant on the grounds of her pregnancy. She also submitted that the respondent indirectly discriminated against her by failing to reasonably consider a part-time position and failing to objectively justify such a refusal. It submitted case law to support its submissions in that respect including Black -v- Tesco , Marie Inoue -v- NBK Designs and Nuala Weir -v- St Patrick's Hospital .
4. Summary of the Respondent's case
4.1. Ms A, who was present at the hearing, stated that the complainant had told her she was pregnant in May but did not mention the issue of working reduced hours until a conversation they had on 12th June, shortly after she had returned from holidays. She said that, as she was leaving for work that day, the complainant told her that she will be working only 3 days a week from the following week on. She said she replied that she did not have time to talk about it now but would discuss it later. She said that the complainant rang her later and told her to "get your ass back here" and started screaming. She said she told her that there was no point in continuing that conversation and terminated the call. She said she was horrified by this conversation and that the short-time working was presented to her as a fait accompli and came completely "out of left-field".
4.2. Ms A gave an account of her communication with the complainant in the following week. She stated that, on the Saturday, there was "picture, no sound". She also said that, on the following Wednesday, she had offered to bring the complainant to the hospital when she became ill.
4.3. Ms A said that they spoke again on 20th June (Friday) when the complainant asked her was she getting short-time. She said that she told her that she was working on it and the complainant said that she wanted to work Thursday, Friday and Saturday. Ms A said that she was confused by this as these were the busier days. She said that suggested to the complainant that she take a couple of hours off each day, but the complainant said that this didn't suit her.
4.4. Ms A said that the complainant also said that she was obliged to give her three weeks pay in lieu of her health and safety leave entitlement, (even though she had not taken any health and safety leave). Ms A said that, when she responded by saying that she did not know anything about that, the complainant said "look it up". She said that the complainant also said that this was "personal not financial" and that she would have to pay "one way or another". Ms A said that the complainant then told her she was going out on sick leave for the rest of her pregnancy. She said that she was "under the illusion" that the complainant would ultimately be returning to work.
4.5. Ms A added that she had not received any medical certificates up to this point. In that context, she said she asked that the complainant furnish her with doctor's certificates for the time that the complainant had been unfit to attend work. She said that the first she heard of a risk assessment from the complainant was when she mentioned about the health and safety leave. She said that she had carried out a risk assessment in any event with respect to another pregnant employee who did the same job as the complainant apart from one task. Ms A said that she carried out a risk assessment of that task with respect to the complainant. Ms A agreed that she had written to the complainant and raised a query with respect to insurance issues arising from the fact that her pregnancy was high-risk but that was only asking from the point of view of what high-risk meant.
4.6. The respondent submitted that there is no onus on it to provide part-time employment, only to reasonably consider same. It submitted that, given that another employee was about to go on maternity leave, the small number of staff in the business, and in the absence of medical evidence at that time, it quite reasonably formed the view that it could not run its business properly while giving the complainant reduced hours as requested by her. It referred to case law to support its submissions in this respect. The respondent added that at no stage did it fail to give reasonable consideration to the complainant's request. It further submitted that this request was made at very short notice (on 12th June) and at the busiest time of the year. It added that the complainant was seeking to set her own hours in this respect.
4.7. Notwithstanding this, Ms A denied that she did not make an effort to find a part-time worker. She said she put an advertisement in her window and on a jobs website. The respondent provided documentary evidence to the Tribunal in that respect. Ms A denied that she was not willing to continue employing the complainant because of her high-risk pregnancy. She said she never got the opportunity to work out part-time hours with the complainant because she left and "went legal". She said she had done what she could to accommodate the complainant's request before that point.
4.8. The respondent added that there was no evidence of dismissal and submitted case law in that respect also, including Hand -v- Minister for Justice, Equality and Law Reform. It submitted that the complainant had failed to establish a prima facie case of discrimination.
5. Conclusions of the Equality Officer
5.1. In Brown -v- Rentokil Ltd. the European Court of Justice stated that "although pregnancy is not in any way comparable to a pathological condition....the fact remains...that pregnancy is a period during which disorders and complications may arise...Those disorders and complications.....form part of the risks inherent in the condition of pregnancy and are thus a specific feature of that condition." In that context, and in all the circumstances of the present case, I am satisfied that the pregnancy-related illnesses to which the complainant refers in this case, in so far as they existed during the specially protected period , are properly considered on the gender ground . Therefore, I have considered them in that context (i.e. on the basis of the gender ground only).
5.2. Section 85A of the Acts sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination in relation to him/her. If he/she succeeds in doing so, then, and only then, is it for the respondent to prove the contrary. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of "sufficient significance" before a prima facie case is established and the burden of proof shifts to the respondent. Therefore, in deciding on this complaint, I must first consider whether the complainant has established the existence of a prima facie case. It is only where such a prima facie case has been established that the burden of proving there was no infringement of the principle of equal treatment passes to the respondent.
5.3. Section 6(1) of the Acts provides that discrimination shall be taken to occur where "a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds..." Section 6(2)(a) of the Acts defines the discriminatory ground of gender as follows - "as between any two persons ..... that one is a man and the other is a woman". The issues for me to decide in this case, then, are whether the complainant was subject to less favourable treatment in comparison to another person on grounds of gender (in this case, because she was pregnant) with respect to her conditions of employment, and whether she was constructively dismissed by the respondent in that respect. In reaching my decision in this case, I have taken into account all of the submissions, both oral and written, made to the Tribunal in the course of its investigation.
Specially Protected Period
5.4. It is well established jurisprudence of the European Court of Justice (as has been held, for example, in the cases of Webb v EMO Air Cargo (UK) Ltd , Brown v Rentokil Ltd and Dekker v Stichting Vormingscentrum ) that the entire period of pregnancy and maternity leave constitutes a special protected period and the employment of pregnant women cannot be terminated from the beginning of their pregnancy until the end of their period of maternity leave (the protected period) save in exceptional circumstances unrelated to pregnancy. Furthermore, as the Labour Court stated in Nailzone -v- A Worker "in a line of authorities, starting with Dekker..., the ECJ has made it clear that, since pregnancy is a uniquely female condition, any adverse treatment afforded to a woman in consequence of her pregnancy constitutes direct discrimination on grounds of her gender".
5.5. In the present case, the respondent accepts that it was aware that the complainant was pregnant from 7th May, 2008. However, it is contested that any adverse treatment took place. In that context, it is essential that I come to a conclusion as to whether that was the case as the specially protected period only applies if, having considered the evidence, I am satisfied that there are facts of sufficient significance to establish that adverse treatment of the complainant by the respondent took place.
5.6. The complainant and respondent presented two conflicting accounts of their communication about the core issue in that respect: the extent to which the respondent made efforts to provide the complainant with part-time work. While I found the complainant's evidence in general to be more compelling than the rebuttal evidence presented by the respondent, I also found that evidence to be inconsistent and contradictory at times. In that context, I consider that at least the key facts of the case require some elucidation before I proceed to consider the issues arising from those facts.
5.7. I am satisfied that, when the complainant informed the respondent of her pregnancy, she informed it that her medical advice was that her pregnancy was high risk and that she should reduce her hours of work in that context. I am satisfied that the respondent was aware from then (6th May) that the complainant sought to revert to part-time working hours for the duration of her pregnancy. It should also be said that it is clear that the complainant did not give any detail to Ms A as to her specific requirements for part-time work. I am also satisfied that she did not express to the respondent the urgency of the matter.
5.8. Nonetheless, I am satisfied that the complainant mentioned the issue to Ms A, albeit briefly, on at least one other occasion prior to their meeting on 12th June and it is clear that the complainant did express to the respondent the urgency of the matter in the course of their conversation on 12th June. I am satisfied that the respondent indicated to the complainant that she was not in a position to facilitate her with part-time hours at that point, although I am not satisfied that she told the complainant that she would not do so at all.
5.9. It is clear that a serious dispute arose between the parties arising out of this conversation and that, in the days following this discussion, a high degree of animosity developed between them. It is not disputed that the complainant then wrote to the respondent on 17th June, attaching letters from her consultant and G.P. lest there be any doubt about her bona fides with respect to the nature of the pregnancy. (I would add that I am also satisfied that, from the outset, the respondent had no such doubts and accepted the bona fides of the complainant with respect to the medical advice she said she had received in that respect).
5.10. The complainant last met with Ms A on 20th June. I am satisfied that the complainant drew the impression from that meeting that she was not going to be facilitated with part-time work. In that context, she requested the respondent to provide her with her statutory entitlement to a risk assessment and to health and safety leave. I am satisfied that the respondent told her that a risk assessment had already been carried out with respect to another pregnant employee and was therefore not required with respect to her. I am also satisfied that the respondent told her that she could not and would not provide her with health and safety leave. It should be added that I do not find it credible, in all the circumstances of the present complaint, that the respondent was not aware at the time in question of its statutory obligations with respect to health and safety leave for pregnant employees.
5.11. It should be said that I am satisfied that the respondent's purpose in meeting the complainant was to seek further information with respect to the complainant's requirements for part-time work with a view to determining whether she could facilitate the complainant in that respect. However, it is clear that the relationship between them had broken down to such an extent that miscommunication was almost inevitable and was the resultant outcome. Communication between the parties thereafter was through representatives.
5.12. I am also satisfied that the respondent made some allusion to the complainant going "on the sick" during the conversation of 20th June and it is clear that she did not wish to have to hire a part-time employee to replace the complainant. Nonetheless, I am satisfied that the respondent did make efforts to hire a part-time worker thereafter and that it did place an advertisement on a jobs website and in the window of its premises.
5.13. I understand the above to be the facts of what occurred in the context of this complaint. The question that then arises in light of those facts is whether there was adverse treatment of the complainant by the respondent.
5.14. The Code of Practice on Access to Part-Time Working ("the Code of Practice") states at paragraph 8 that "Best practice indicates that employers should treat (requests for part-time work) seriously and where possible discuss with their employees if and how such requests can be accommodated...". The Code goes on to state that "In considering the application both the employer and employee should take account of all factors relevant to both the organisation and ... the applicant" and that "a reasonable timeframe to consider the request" should be provided. 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.".
5.15. Paragraph 14 of the Code, a statutory instrument, 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. The Code, inter alia, provides a framework for employers when dealing with applications for part-time employment. As such it must be interpreted in light of the corpus of caselaw in existence, including that which was outlined by the parties in their oral and written submissions and which I have considered. This case law does provide, as the respondent submits, that there is no onus on it to provide part-time employment, only to reasonably consider same. However, each case in this respect must be considered on its own merits.
5.16. I am conscious that the respondent is a very small employer with limited resources. In that context, I would not expect it to have detailed formal procedures with respect to requests for part-time work. However, I am satisfied that there is an onus on it, particularly in light of par. 5.15 above, to consider part-time working requests in general within a reasonable timeframe. In all the circumstances of the present case, then, I am satisfied that there was a particular onus on it to consider the complainant's request at the earliest possible opportunity. In particular in this respect, I am satisfied that Ms A was aware of the complainant's request for part-time work from 6th May and was aware at that stage that the request arose from her pregnancy being high-risk. It is also clear that Ms A did not have or raise any concerns about the bona fides of the complainant with respect to the pregnancy being high-risk.
5.17. While I note that Ms A was on holidays for a period in the interim, it is clear that, prior to 12th June, the respondent took no action in accommodating the request, or even with respect to consulting further with the complainant about the matter. It is also clear that the conversation on 12th June took place at the instigation of the complainant. Furthermore, it is clear that the complainant was frustrated by the respondent's lack of response to her request following that conversation. This led her to make contact with her solicitor and her medical practitioners with a view to issuing a formal request to consider the matter, backed up by appropriate medical evidence, as she considered that the informal approach had failed. She did so on 17th June. I am satisfied that the complainant was correct in her conclusion that Ms A had not given her request for part-time work any serious consideration prior to that date.
5.18. When Ms A met with the complainant on 20th June, then, there could have been no doubt in her mind of the general nature or urgency of the complainant's request for part-time work. It is clear that Ms A sought further information from the complainant at that meeting as to the detail of the particular arrangement she wished to agree. I can also understand her confusion at the complainant's request to work busier days, which was clearly not consistent with someone who sought to reduce her workload.
5.19. On the other hand, it is clear that the complainant's interpretation of what Ms A said to her was that her request was not even going to be considered, although Ms A did not explicitly say that. It is clear that the complainant felt she had no alternative at that point than to request that she be provided with health and safety leave. At the very least, she requested that a risk assessment of her particular requirements in light of her high-risk pregnancy be carried out. These requests were refused.
5.20. I find, on balance, that the approach and demeanour of Ms A at their meeting of 20th June led the complainant to the reasonable conclusion that she would not give any serious consideration to her request for part-time work. While it is clear that the respondent sought to engage a part-time worker in order to facilitate the complainant's request, it did not do so until after that meeting. I am satisfied that, in all the circumstances of the present case, there was an onus on the respondent to at least seriously discuss the matter with the complainant before then, or at the very latest in the course of that meeting. I am satisfied it did not do so.
5.21. Furthermore, the respondent's failure to seriously consider the complainant's request within a reasonable timeframe cannot be justified in circumstances where it was feasible for it to accommodate the complainant's request. In that regard, I note that it clearly was in a position to hire a part-time worker to cover the hours for which the complainant was not available, and did so. It bears repeating that the respondent is a very small employer with limited resources, and the timing of the complainant's request was clearly far from ideal for it, particularly given that it already had an employee who was about to go on maternity leave. However, it clearly was able to accommodate the request and could have done so at an earlier stage. At the very least, it could have started the process of recruitment of a part-time worker at an earlier stage.
5.22. In all the circumstances of the present complaint, then, I am satisfied that the respondent failed to give serious consideration to the complainant's reasonable request for a part-time working arrangement for the duration of her pregnancy within a reasonable timeframe. I am satisfied that this was adverse treatment arising out of the complainant's pregnancy, again particularly in light of par. 5.15 above.
5.23. It is not for me to make a determination as to whether the complainant was entitled to a risk assessment and/or health and safety leave. However, in refusing to even consider providing same to the complainant, it is clear that Ms A exacerbated the distress caused to the complainant that arose from her failure to seriously consider the request for part-time work at that stage. As such, I am satisfied that this refusal was a further example of adverse treatment arising out of the complainant's pregnancy.
5.24. In light of the specially protected period as outlined above, the complainant has established a prima facie case of discrimination with respect to her conditions of employment. The respondent's rebuttal in this respect related primarily to the factual position and, in that context, the rebuttal has not been successful. It also submitted that it was not obliged to provide part-time work. However, as my finding is that it discriminated against the complainant with respect to not giving appropriate consideration to same, then this element of the rebuttal is irrelevant. In any event, it is clear that the respondent could have facilitated the complainant's request had it acted more swiftly.
5.25. It should be added that other matters were raised by both parties with respect to this aspect of the complaint, but I am satisfied that these matters are not of relevance to the issues at stake in this complaint and so have not been considered by me (nor referred to in the evidence summaries above). Finally, it should be added that I am satisfied that this is a clear case of direct discrimination and no issue of indirect discrimination arises.
Constructive dismissal
5.26. 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 ...."
5.27. In An Employer v A Worker (Mr. O No.2) the Labour Court comprehensively addressed the issue 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". In the instant case I am satisfied that the "reasonableness" test is the more appropriate.
5.28. The respondent's behaviour was adverse treatment with respect to the complainant's conditions of employment. However, the reasonableness test is based on a more stringent criterion: that the behaviour of the respondent was so unreasonable that the complainant could not fairly be expected to put up with it any longer. I am not satisfied that the adverse treatment of the complainant by the respondent up to the 20th June was so egregious that it meets that criterion.
5.29. I also note that 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. It is clear that the grievance had not been dealt with up to and including the meeting between the complainant and Ms A on 20th June. However, it is also clear that the respondent's behaviour up to that point had angered and upset the complainant to such a degree that she was no longer open to reason in that context. I note that this level of distress resulted from her adverse treatment by the respondent up to that point. However, I am satisfied that a successful return to work by the complainant could have been achieved had she acted more reasonably thereafter. Her unilateral termination of her employment was not justified in that context.
5.30. In short, then, I am satisfied that the complainant acted precipitously in departing the respondent's employment and could have acted more reasonably in that respect, particularly after the meeting on 20th June. In that context, I am not satisfied that the complainant was justified in unilaterally terminating her employment on 20th June and she has failed to establish a prima facie case of discrimination of her by the respondent in that respect.
Access to Employment
5.31. Access to employment claims relate to cases of recruitment or entry to employment. In this claim the complainant was already working for the respondent and her claims in relation to the time she was working for the respondent have already been considered in this decision. Therefore, I find that the complainant has failed to establish a prima facie case in relation to access to employment.
6. Decision
6.1. Having investigated the above complaint, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts, 1998 to 2008:
6.2. I find that the complainant has failed to establish a prima facie case of discrimination of her by the respondent on the gender ground with respect to access to employment in terms of Section 6(2)(a) of the Acts and contrary to Section 8(1)(a) of the Acts.
6.3. I find that the complainant has failed to establish a prima facie case of discrimination of her by the respondent on the gender ground with respect to dismissal, in terms of Section 6(2)(a) and Section 2(1) of the Acts, and contrary to Section 8(6)(c) of the Acts.
6.4. I find that the respondent discriminated against the complainant with respect to her conditions of employment in terms of Section 6(2)(a) of the Acts and contrary to Section 8(1)(b) of the Acts.
6.5. In accordance with Section 82 of the Acts, I order the respondent to pay to the complainant the sum of €5,500 (being the approximate equivalent of three month's salary) in respect of the discrimination. This award is made to compensate the complainant for the distress caused to her as a result of the discrimination by the respondent. In that context, it is not in the nature of pay and is, therefore, not subject to tax.
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Gary O'Doherty
Equality Officer
22nd December, 2011