The Equality Tribunal
EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E2012-175
PARTIES
Mary Murphy
(Represented by Eilis Barry B.L. instructed by the Equality Authority)
AND
Independent Newspapers (Ireland) Limited
(Represented by Ray Ryan B.L. instructed by Fanning & Kelly Solicitors)
File reference: EE/2009/613
Date of issue: 17 December 2012
HEADNOTES: Employment Equality Acts - Sections 6 & 8 - Gender - Discriminatory Dismissal- Harassment - Victimisation
1. DISPUTE
1.1. This dispute concerns a claim by Ms Mary Murphy that she was discriminated against by Independent Newspapers (Ireland) Limited on the grounds of gender contrary to section 6 of the Employment Equality Acts in terms of conditions of employment and discriminatory dismissal in accordance with section 8 of the Acts, that she harassed in terms of section 14A of the Acts and that she was victimised in terms of section 74 (2) of the Acts.
1.2. The complainant referred her claim to the Director of the Equality Tribunal on 31 August 2009 under the Acts. On 13 March 2012, in accordance with his powers under section 75 of the Acts, the Director delegated the case to me, Hugh Lonsdale, 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 received from both sides. In accordance with Section 79(1) of the Acts and as part of my investigation I proceeded to a hearing on 29 May 2012 and final information was received on 8 October 2012.
2. COMPLAINANT'S SUBMISSION
2.1. The complainant started work for the respondent on 12 March 2007 as a Business Development Manager for their property portal and was based in Galway. In March 2008 she told her manager (Mr A) that she was pregnant. Subsequently, on 1 April 2008 she met someone from HR (Ms B) and discussed her maternity package as there was nothing specified in her contract. She submits she was told that she was entitled to full pay for 20 weeks and this could be spread out over the 26 weeks of her maternity leave entitlement, minus any Social Welfare payment. She was also told that she had an option to spread the 20 weeks pay over 42 weeks, if she decided to avail of the additional 16 weeks unpaid leave. MS B outlined that these were the standard norm throughout the respondent.
2.2. On 8 July 2008 the complainant posted her MB10 Maternity Form to HR for completion of the employer section. On 9 July 2008 she called into HR to collect the form as she was in Dublin attending a staff conference. Ms B told her that her employment had transferred from Independent Newspapers (Ireland) Ltd to Internet Interaction Ltd on 24 March 2008 and the MB10 was completed to reflect this and a P45 from Independent Newspapers (Ireland) Limited was attached. The complainant submits that she had not previously been told that the transfer had taken place and she had not been given a new contract.
2.3. The complainant went on maternity leave on 11 August 2008. She submits that at 4.50 pm on 13 August 2008 Mr A rang her on behalf of the new Country Manager (Mr C) to ask her to attend a team meeting in Galway the following day. She said she did not feel comfortable attending the meeting as she was heavily pregnant but would ring him back. At 5.21 pm that day Ms B rang her to say there was a problem with her maternity leave benefits. Ms B told her she had told her what benefits she would be entitled to if she had been working for Independent Newspapers. However, as she was working for Internet Interaction Limited she had no entitlement to any maternity pay. The complainant rang Mr A and told him she would not be attending the meeting as she was so upset by what she had been told. Mr A contacted the HR Director (Mr D) and rang the complainant back to confirm that maternity pay was not covered in her contract.
2.4. On 14 August 2008 she received a phone call from Mr C, who she had never met, asking her to attend the team meeting that day. She submits that she told Mr C that she was on maternity leave and would not be attending work meetings Mr C went on to inform her that she was being made redundant the following day. She had no entitlement to redundancy payments but as a gesture the respondent was giving her 4 weeks pay as notice plus any holiday entitlements. He gave her two options: either to settle the situation the following day and get a cheque for her salary up to that time plus 4 weeks notice and holiday pay, or to wait until the end of her maternity leave to receive the same payment. She submits that Mr C pressurised her into making a decision immediately but she told that she would not make a decision until she had checked her legal rights. She said she was on maternity leave which was a protected period and Mr C said she was officially off payroll from 8 August 2008.
2.5. The complainant submits that she rang the National Employment Rights Authority and then rang Mr C back. She informed him it would be illegal for her to accept any final settlement in relation to redundancy while on maternity leave and advised him that she would be taking a case to the Rights Commissioner Service.
2.6. The complainant submits that later the same day she found out from a colleague who had attended the team meeting in Galway that all five Business Development Manager positions were being made redundant but two new Business Development roles were available on lesser contracts. At the meeting the two roles were offered to two male colleagues and two female colleagues were made redundant.
2.7. On 18 August 2008 Mr B left messages to make arrangements to collect company property that the complainant had: a laptop, a mobile phone and a wireless internet connection, the following day. On 19 August the complainant submits that she received a phone call from a colleague who explained she had been asked to contact her by Mr C to say that if she did not return all the company property then HR would not release any monies owed. Subsequently her mobile phone and mobile internet connection were disconnected. The complainant was in labour at this point and her baby was born the following day.
2.8. The complainant submits she was victimised after she told Mr C she was taking a case to the Rights Commissioner Service and he told her she was on off payroll since 9 August and pressurised her into taking a settlement there and then. She submits she was further victimised when her phone and internet connection were blocked, leaving her with no form of communication at a very important time for her personally.
2.9. The complainant submits she was unable to enjoy her full legal entitlement to maternity leave uninterrupted and all the health and emotional benefits that flow from that for herself and her baby. Her life was taken over by these events two days after she went on maternity leave and she spent a lot of emotional effort and time in trying to figure out her legal rights. She submits this amounts to discrimination on the grounds of her gender contrary to the EU Gender Recast Directive, 2006/54/EC because of her treatment during the protected period of her pregnancy and when she was threatened with dismissal and then dismissed during this period.
2.10. The complainant also submits she was unfairly selected for redundancy when she returned to work following her maternity leave.
2.11. The complainant submits these events have had a detrimental effect on her health and she has been unable to go back to work since the birth of her baby.
3. RESPONDENT'S SUBMISSION
3.1. The respondent confirmed that the complainant started work for them on 12 March 2007 with PropertyNews.com in the role of Business Development Manager, on a contract which was signed by the complainant. PropertyNews was absorbed into Internet Interaction Ltd, which is the digital wing of Independent Newspapers (Ireland) Limited.
3.2. The respondent submits that by July 2008 property transactions had plummeted so abruptly that it was necessary for them to take drastic remedial action. PropertyNews.ie found its' advertising sales virtually static and there was an urgent need to restructure its entire business model. A new Country Manager (Mr C) was appointed and a cutback in Business Development/Sales from seven to three was propounded. A meeting for all involved was arranged for 14 August 2008 in Galway. Those at the meeting were told that the Role of Business Development Director and five Business Development Managers were to be made redundant. Two of the Business Development Managers had been selected to fill sales positions in the new structure and the were offered positions with contracts with new terms and conditions. The two people were selected on the basis of two criteria: total revenue gained in the period 3 January to 17 July 2008; and company service.
3.3. The respondent submits that the two selected both happened to be male but they were selected on the basis of objective criteria. They both accepted the new positions at the meeting on 14 August 2008 and those that were unsuccessful were informed immediately. The complainant had commenced maternity leave and was not at the meeting. PropertyNews.ie was redeveloped as Globrix.ie.
3.4. The respondent submits that on 18 February 2009 complainant was reinstated on the payroll but did not resume full-time employment after her maternity leave until 16 March 2009. She was paid her salary at her previous level and her car allowance. On 19 March 2009 the complainant met the Group HR Director (Mr D) and Mr C and the changes that had been put in place were outlined to the complainant. As one of the two people who accepted new contracts at the August 2008 had left in December 2008 she was offered MM a new contract of employment with Globrix.ie, which reflected the structural changes and the vastly deflated property market. They also both took the opportunity to apologise for the phone call from Mr C on 14 August 2008, which had been made after the commencement of her maternity leave. Subsequently the complainant asked what her alternatives would be if she did not accept the new contract. Mr D advised her that her current contract could not be sustained and the respondent would have no option but to terminate that contract in accordance with its provisions. The complainant then replied saying that she had an entitlement to redundancy payments as she had more than two years service and Mr D said he would look at putting together "the best package we can in the context of redundancy". The complainant was offered salary payment up to 16 April plus €6,000, which included statutory redundancy payment of €3,120 and would entail her withdrawing a grievance on the maternity pay issue to a Rights Commissioner. The complainant rejected this offer and a subsequent improved offer. The complainant's employment was terminated on 6 May 2009.
3.5. The respondent acknowledges that Ms B gave incorrect information on her right to maternity pay. The information was given in good faith but was an unfortunate but genuine error. Mr D offered profuse apologies for this in a letter 18 August 2008, which stated "This unfortunate error was only identified upon commencement of the planning for restructuring". The respondent submits that maternity pay is not a natural right of employment and is not a universal benefit in Independent News & Media, "when maternity payment is made it is only done so where the individual is covered by a collective agreement or individual contractual condition stating this benefit is existent." They submit this was clearly absent in the complainant's contract.
3.6. The respondent submits that the telephone conversation on 14 August 2008 from Mr C was intended as information on the situation as the complainant had not been at the group meeting. He was outlining the available options open to the complainant which were subsequently set out in a letter from Mr D dated 18 August 2008: that she could resume work post leave or voluntarily accept pay in lieu of notice, plus any outstanding holiday pay. Mr C offered to meet the complainant to "apologise personally and to discuss above further". As was her right the complainant opted to return to work at the end of her maternity leave. She rejected an offer of alternative employment.
4. FINDINGS & CONCLUSION
4.1. I have to decide if the complainant was discriminated against in relation to conditions of employment, if she was dismissed in a discriminatory manner on the grounds of gender, if she was harassed and if she was victimised. In reaching my decision I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence presented at the hearing.
4.2. As her contract made no mention of maternity pay the complainant went to the respondent's HR department to ask if she had such an entitlement. She was told that she was entitled to twenty weeks full pay whilst on maternity leave. She contends that when she was subsequently told she did not qualify for maternity pay it was because she now worked for Internet Interaction Limited. At the hearing the respondent confirmed that there are a number of companies and categories of workers within the respondent organisation. Maternity pay is only paid when an individual is covered by a collective agreement which includes a provision for maternity pay, or where the individual has a contractual condition which explicitly states such an entitlement. The complainant's contract specifically states that "there are no collective agreements which directly affect the terms and conditions of the Employee's employment" and it has no specific provision regarding maternity pay. This was borne out in the documentation subsequently submitted by the respondent. The complainant adduced no evidence, apart from the initial conversation with HR, that she had an entitlement to maternity pay, in either of the categories, from the time she started working for the respondent. The complainant contends that the person in HR told her she lost this entitlement to maternity pay because she had been moved to another company in the respondent's organisation without her knowledge. However, no evidence was adduced that this move had in fact impacted on the complainant's terms and conditions of employment in any way. I accept the respondent's evidence that the complainant had no contractual right to receive maternity pay.
4.3. It is very regrettable that the complainant was informed she had such an entitlement and that her lack of entitlement to maternity pay only came to light when the respondent looked at her contract in relation to the impending re-structuring. There is a responsibility on HR departments to be clearly aware of the entitlements of every individual worker. In this case the complainant was initially misinformed. However, such mistakes do not amount to discrimination.
4.4. I accept the complainant's evidence that the respondent attempted to make her redundant when she was on maternity leave and she was put under pressure to accept a pay-off that did not include statutory redundancy payment. It was only the complainant's actions, in getting outside advice and telling Mr C she could not be dismissed whilst on maternity leave and that she was intending to take a case to the Rights Commissioner Service that seems to have stopped Mr C from putting her under further pressure. The respondent also demanded back company property and threatened not to pay her severance money if she did not return the property. When the complainant did not accept their offer they proceeded to turn off her mobile phone and internet access after she had gone on maternity leave. The respondent offered no explanation as to why this had not been discussed before she went on maternity leave, nor why it had been done when, even though she was not receiving maternity pay, she remained an employee. There is no doubt this caused the complainant considerable stress at a time when she was heavily pregnant.
4.5. The complainant returned to work after her maternity leave on the same terms and conditions she had when she went on maternity leave. However, three days later she was told that she could not continue on the same contract of employment because of the reorganisation which had taken place shortly after she went on maternity leave. As one of the two people who took the restructured positions had left, the respondent offered the complainant this position; which had been vacant for three months. When she asked what would happen if she did not take this position she was told her contract would be terminated; which it was when she rejected the new contract.
4.6. The respondent dismissed the complainant when it terminated her contract on 6 May 2009. She was not dismissed in the protected period and from the evidence adduced I accept that her dismissal arose because of the restructuring of the property portal. In that respect she was treated in the same way as the other two Business Development Managers who were let go under the restructuring. Whilst they were also female the complainant has not provided any evidence that the selection criteria were unfairly applied to her. I therefore conclude that the complainant had been unable to establish a prima facie case of discrimination in relation to discriminatory dismissal.
4.7. The case law of the European Court of Justice (ECJ) is quite clear. In Dekker v Stichting Vormingscrentrum voor Jong Volwassen, Case C-177/88, it held that unfavourable treatment as a result of or connected to pregnancy is direct discrimination on grounds of gender. It later held in Brown v Rentokil, Case C-394/96 that the entire period of pregnancy and maternity leave is a protected period during which both the EU Equal Treatment Directive 76/207 and EU Pregnancy Directive 92/85 prohibit dismissal on grounds of pregnancy and dismissal of a pregnant employee during that period can only occur in exceptional circumstances unrelated to pregnancy or maternity. In CJEU case C-232/09 Danosa v LKB Lizings SIA [2011] CMLR 45 the Court said: It is precisely in view of the harmful effects which the risk of dismissal may have on the physical and mental state of women who are pregnant, have recently given birth or are breastfeeding, including the particularly serious risk that women may be prompted voluntarily to terminate their pregnancy, that, pursuant to Article 10 of Directive 92/85, the EU legislature provided for special protection for women, by prohibiting dismissal from the beginning of pregnancy to the end of maternity leave."
4.8. In this case, as I have already stated, the complainant was not dismissed during the protected period. However, she was threatened with dismissal at the beginning of her maternity leave and this was only withdrawn when the complainant told the respondent she could not be dismissed while on maternity leave. Even then the respondent proceeded to demand back property. When the complainant did not respond the respondent cut off access to a mobile phone and internet access without warning, even though she remained an employee. I accept the complainant's evidence that these actions by the respondent caused her considerable stress.
4.9. The respondent contends that Mr C's telephone conversations with the complainant on 14 August 2008 were intended as information on the situation as she was not at the meeting. However, I conclude that these conversations were a clear threat of dismissal, made whilst the complainant was on maternity leave, intended to pressure her into leaving the respondent's employment and were only not pursued when the complainant made the respondent aware of her rights. I find these actions amount to direct discrimination on the grounds of gender in relation to the complainant's conditions of employment.
4.10. These actions by the respondent made no direct reference to the complainant's condition; in fact, as I have concluded, they ignored her condition. Therefore, I do not find that the respondent's actions amount to harassment within the meaning of the Acts.
4.11. The complainant contends that the respondent's actions in relation to company property amounts to victimisation as it occurred after she told Mr C she had sought advice from NERA and they could not dismiss her and she intended to take a claim to the Rights Commissioners. Section 74 (2) of the Acts states: ".....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,
(b) any proceedings [under this Act] by a complainant, .......".
Section 6 (1) of the Acts states "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 specified". I am satisfied that the complainant made a general complaint of discrimination when she told Mr D that she was on maternity leave and could not be made redundant. The next contact was when Mr B left a message to collect the company property. The respondent contends it was important that the property was returned to them because of the database of information which was on the property. I cannot accept this as the complainant was still an employee who would have been bound by the usual employer/employee relationship in relation to confidential information. No mention of the return of company property was made when Mr C initially told her that her position was being made redundant. It only came after she complained that this threat of redundancy impinged on her rights whilst on maternity leave. I find the events to be so closely linked as to amount to victimisation.
5. DECISION
I have investigated the above complaint and make the following decision in accordance with section 79 of the Acts that
- The respondent discriminated against the complainant in relation to conditions of employment,
- the respondent did not dismiss the complainant in a discriminatory manner
- the complainant was not harassed, and
- the complainant was victimised.
In accordance with Section 82 of the Act, I order the respondent pay the complainant:
(a) €26,000 in compensation for the distress caused by the discrimination in relation to conditions of employment, and
(b) €26,000 for the distress caused by victimisation.
The total award of €52,000 was around one year's remuneration for the complainant and is redress for the infringement of Ms Murphy's statutory rights and, therefore, not subject to income tax as per Section 192A of the Taxes Consolidation Act 1997 (as amended by Section 7 of the Finance Act 2004).
____________________
Hugh Lonsdale
Equality Officer
17 December 2012