THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2011
DEC-E2012-010
Parties
Julie O'Brien
(represented by Eilis Barry B.L. instructed by Byrne Wallace Solicitors)
versus
Persian Properties trading as O'Callaghan Hotels
(represented by Rosemary Mallon, B.L. instructed by Sheehan and Co. Solicitors)
File references: EE/2009/960
Date of issue: 06 February 2012
Keywords: Employment Equality Acts, Gender, Family Status, Discriminatory dismissal, Pregnancy, Harassment, Victimisation.
Dispute
1.1 The case concerns a complaint by Ms Julie O'Brien that Persian Properties trading as O'Callaghan Hotels discriminated against her on the grounds of gender and family status leading to dismissal contrary to Section 8(6)(c) of the Employment Equality Acts 1998-2011 [hereinafter referred to as 'the Acts']. She is also claiming harassment on the same grounds within the meaning of 14A of the Acts. A complaint of victimisation, as defined in Section 74 of the Acts, is also being made.
1.2 The complainant referred a complaint under the Act to the Director of the Equality Tribunal on 23rd December 2009 and a further complaint on 28th June 2010. On 17th May 2010 in accordance with his powers under Section 75 of the Act, the Director delegated both cases to me, Orlaith Mannion, 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 this date, my investigation commenced. Submissions were received from both parties and as required by Section 79(1) of the Act a joint hearing was held on 4th March 2011 and following requests for adjournments by the respondent resumed on 3rd May and 4th May. The last piece of correspondence requested by me was received on 3rd February 2012.
Summary of the complainant's case
2.1 The complainant commenced employment with the respondent on 14th May 2003 as a Director of Sales and Marketing. She had significant experience in event management companies and with an other hotel group. This position was a senior management role with overall responsibility for multi-million euro revenue targets, enhancing the O'Callaghan hotel brand domestically and internationally and as a media spokesperson for the company.
2.2 Ms O'Brien submits that within four years the accommodation revenue increased by 39% on her watch. She states that she did this by retraining the sales team to her standards. She submits that the Managing Director, Mr A, commented on several occasions that 'the sales teams had never been so well managed'. Under her direction, O'Callaghan Hotels won a number of prestigious hospitality awards including Best Sales and Marketing Team, Best Customer Retention Team and Best Website.
2.3 She maintains that there was a more sexist atmosphere in the respondent's workplace than the complainant had experienced in previous organisations. Ms O'Brien submits than Mr A was uncomfortable in her presence while she was pregnant and would avert his eyes to avoid looking at her. She states that he expressed a belief to her that the whole 'feminist business' had gone too far. Ms O'Brien claims that Mr A made several comments on the varying degrees of attractiveness of female employees. An example she gave was that a receptionist requested a high stool behind the reception desk when she was heavily pregnant. This was initially refused and only granted when the company received a doctor's note.
2.4 The complainant first became pregnant in 2004. She worked right up until late Friday 14th January 2005. A few hours after finishing work she went into labour and her son was born the following day. She submits that she was put under pressure not to take her full maternity leave. During her maternity leave, she regularly received calls and emails from the office as well as documents couriered to her and was put under pressure to attend work meetings and events during her maternity leave. Nobody was assigned to her duties during this time.
2.5 Following the birth of her second son in 2008, she submits that she was again put under pressure to work during her maternity leave. For example, just weeks after her son was born she was asked to attend a race meeting at the Curragh for the purpose of entertaining clients. Ms O'Brien submits that she felt it was a test of her commitment so she did agree to do it. During this maternity leave, Ms O'Brien also came into the office to tell an employee on her team that the employee was being made redundant as she thought it was inappropriate to delegate this task to somebody else. During both of these maternity leaves, she states that she did approximately four/five hours work a day. Ms O'Brien admits that she volunteered to do some of this work. However, she maintains that in an other organisation she would not be expected to.
2.6 Prior to her return from maternity leave in 2008, the complainant attended a business meeting with Mr A. Ms O'Brien used this opportunity to request to return to work on a four-day week basis. She submits that Mr B [Group General Manager for O'Callaghan hotels and to whom she directly reported] was prepared to accede to the request, subject to Mr A's approval. She maintains that Mr A's reaction was volcanic. During this conversation, she maintains that she asked directly whether her employment would continue with O'Callaghan hotels if she had a third child. She submits that Mr A responded by saying that he would prefer for her not to be on the staff of O'Callaghan hotels if she had a third child. Ms O'Brien submits that while she could understand how her request was refused and was willing to continue to work a five-day week, she found the response to this request to be excessively negative. For this reason, the complainant intended resigning when she returned from maternity leave and emails to that effect were submitted as evidence. However, Mr A apologised almost immediately on her return from maternity leave. According to Ms O'Brien, he said he behaved badly because of the recession and the pressure that put on him. Ms O'Brien submits that she made it clear that she was committed to her career and the company and that she intended continuing to balance work with her family responsibilities. In an email Ms O'Brien sent to Mr B on 28th September 2008 she said:
Finally - just following our conversation last week, I would like to be very clear on one point. I am as committed as ever to O'Callaghan Hotels. I have no intention of reducing my commitment or interest in my job. I have every intention of remaining committed to my team and dedicated to achieving targets. My personal life has never and will never affect my ability to perform. I just wanted to clarify this following the comments on family last week.
2.7 The respondent experienced a sharp decline in business in 2008. A number of people were made redundant. In early 2009, all salaries were cut by 10%. Ms O'Brien submits Mr A's behaviour during this period was very erratic. There was an atmosphere of fear in the workplace. He asked her for a business report which he had not requested since 2006. The complainant had only compiled it for her own use. Nevertheless, she handed him the report pointing out that it was rough and ready. He tore the report up in front of her face and said 'that's what I think of that...disgraceful'. She tried to explain that if she had been given notice of the request, the report would be in a more suitable format. He replied to her in an unpleasant tone to stop making excuses. Generally, Ms O'Brien submits that she had a good working relationship with Mr A. Therefore, at this meeting, she submits that she asked him whether she was 'on the redundancy list'. According to Ms O'Brien, he replied that she had nothing to worry and that she would not be made redundant.
2.8 When she became pregnant in 2009, the complainant submitted that she was extremely anxious about telling Mr A and waited until she was twenty weeks pregnant to do so. When she did on 30th June 2009 she admits he was kind in his response and congratulated her. Mr B was similarly kind when she told him. Ms O'Brien submits that she told both of them that she previously had two miscarriages and wanted to 'have this child in peace' i.e. not to work during her maternity leave. Her maternity leave was due to commence on 20th November 2009.
2.9 On 3rd July Mr B, prior to a business teleconference, referred to the stress she was under and asked her whether she 'needed the hassle going forward' and whether she 'would help Mr A'. Following the conference call, she asked Mr B to be frank with her. He advised her that Mr A wanted her to consider taking redundancy. The following Monday, Mr B asked whether she had considered the proposal. Ms O'Brien stated that she did not wish to take voluntary redundancy and asked why she was being offered it. According to her, his reply was 'sure isn't it better than being given a month's notice and told to leave'. She submits that Mr B referred to how well-connected Mr A was. Ms O'Brien maintains that she found this very threatening as she interpreted it to refer to Mr A's political connections. She regularly observed Mr A having lunch with the then Taoiseach.
2.10 Mr B set up a meeting between the complainant and Mr A the following Monday (6th July). Ms O'Brien submits Mr A stated that she had surprised him with the news that she was 'now in the family way'. He asked her what her intentions were and she explained again that she intended to work up until 20th November 2009 and then going on maternity leave and returning to work afterwards. According to Ms O'Brien, she then asked him whether his position still was that he did not want her to stay employed with O'Callaghan hotels if she had a third baby. She submits that he appeared uncomfortable but said yes [that he did not want her on the staff with a third baby]. Ms O'Brien maintains he then said 'we do not want another [named former employee] case do we?' This employee had brought proceedings against the company previously.
2.11 However, at this meeting she submits that Mr A appeared to accept that she did not want to take voluntary redundancy. Instead, he offered that she take early maternity leave and offered to pay her up until the start of her maternity leave. For the rest of her maternity leave, she would receive State Maternity Benefit. She said she would have to think about it. The following day, Mr B asked her what she thought about Mr A's proposal of early maternity leave. Ms O'Brien said that she did not like the idea and that if it were her company she would not pay somebody for sitting at home doing nothing. Ms O'Brien states she said that she was happy to work until 20th November and to go on maternity leave then. According to her, Mr B asked her whether she intended having a fourth child and she replied by saying that she was focused on having her third child. Ms O'Brien said that she reiterated that the proposal to 'sit at home and be paid' did not sit well with her. Mr B said that Mr A can be 'unbelievably kind'. She submits that initially she thought the reason she was being offered early maternity leave was because she had two miscarriages previously, that the respondent was being generous to her and rewarding her for her hard work. At all times during the discussions regarding early maternity leave the complainant submits that it was her understanding that she would be returning to work following her maternity leave. Mr B said he would commit the deal to writing - see attached email. The amendments by Ms O'Brien in her responding email are in bold:
09 July 2009 16:47
Hi [Mr B]
Just one amendment
Julie
09 July 2009 16:33
Julie,
As per our meeting and to confirm the following
1) Finish date 7th August 2009 (early maternity leave)
2) Full payment up to 20th November 2009
3) Holiday pay entitlement up to 20th November 2009
4) Julie can you confirm holiday days due up to 20th November 2009. I have taken 1 so far this year and will take 20 July. 18.26 days in total less 2 = 16.26 days to maternity date of 20 Nov
5) Once we both agree to the above I can put this in writing to you
Thanks
[Mr B]
2.12 The following day she checked with Mr B was the proposal as per the email acceptable to Mr A. Mr B said it was. Ms O'Brien submits that she was weary from all the discussions so she agreed to accept the proposal based on the email sent the previous day. She began to tell people that she would be taking early maternity leave. She submits that the Human Resources Manager congratulated her and said 'you lucky thing, that means you won't be back until mid-June'.
2.13 She now submits that she was naive to believe that the respondent was concerned for her wellbeing as on 14th July Mr B asked her to come into his office. He handed her a draft agreement 'for your own reassurance and comfort'. She maintains that he seemed very nervous. It read:
13th July 2009
Strictly Private and Confidential
Julie O'Brien
Dear Julie
Further to our meeting on Thursday 9th July 2009 and as per our agreement, I can confirm your last working day will be Friday 7th August 2009. You will receive your full salary payment up to 20th November 2009 with full holiday entitlements up to 20th November 2009.
Your final pay and P45 will issue on that last working day of November 2009.
_____________
Mr B
Group General Manager
___________
Julie O Brien
Director of Sales and Marketing
2.14 When she read the document, she stated that she jumped back with the shock of seeing the word P45 and replied 'there was no way in the world that she would sign that agreement'. He offered to delete the offending paragraph but she still refused to sign it and submits that she said 'please do not come back to me with a letter like that again'. The document was never signed. She submits that there were no discussions prior to the production of this letter of a P45 or termination of employment.
2.15 Ms O'Brien maintains that Mr B increased the pressure at a meeting with her the following morning (15th July). He made it clear to her that he needed her to sign the letter. She refused stating the termination of her employment had never been discussed and that she had no intention of resigning. Mr B insisted on an other meeting that afternoon. According to Ms O'Brien, at that meeting he banged the table saying that she had to sign the letter and that he did not want to have to involve Mr A. The complainant submits that she was distraught as she had 11 meetings regarding this issue between the 3rd of July and the 15th of July. She maintains that she felt under intolerable pressure. She submits that she told Mr B then that it felt like 'Chinese torture', that she had not been sleeping and that she felt physically ill. She became very distressed at the meeting and she submits that Mr B felt uncomfortable. The following day Ms O'Brien felt unwell and made an appointment with her consultant gynaecologist/obstetrician. She submits that she was extremely upset during this appointment. When she explained to her obstetrician the reasons why, she submits that he said 'If somebody treated my daughters like that...' At this appointment, he certified her as unfit for work due to work-related stress.
2.16 Despite sending in medical certificates to say that she was ill, on 10th August she received a letter from Mr B to arrange a meeting to complete the handover of any outstanding issues. Without warning, her fuel card provided by O'Callaghan hotels was revoked (when she used it to pay for petrol, the attendant informed her that the card had been reported as 'stolen') and access to her work mobile phone (blackberry device) was blocked. On 26th August, she received a letter from Mr B enclosing a 'memorandum of agreement'. It was very similar to the document in Paragraph 2.13 except that it did not require either her signature or Mr B's. It provided that she would be paid until 20th November and her P45 would be processed on that day. The accompanying letter asked her to return all company property e.g. her mobile phone, credit card and fuel card. She points out that perquisites like mobile phones and fuel allowances are normally retained by employees during sick leave and maternity leave. Ms O'Brien states that at no time after she announced she was pregnant in 2009 did she state, suggest or imply that she wanted to leave her job at O'Callaghan hotels.
2.17 The complainant engaged legal representation. On 31st August 2009 the complainant's solicitor wrote to Mr A stating that there was no agreement in place but the complainant would be resigning from her employment with effect from the end of her maternity leave which if she had her baby on her due date would have been 26th May 2010. The letter also pointed out that her fuel card and mobile phone were blocked.
2.18 On 2nd September 2009, the complainant went into premature labour. Her baby daughter was stillborn at 28 weeks gestation.
2.19 The respondent did not pay the complainant for most of her maternity leave (i.e. after 20th November 2009), which she maintains is victimisation within the meaning of the Acts. She had been paid her full salary during her previous two maternity leaves. That her phone remained blocked during this period, the complainant submits, also constitutes victimisation. She had brought her phone number with her when she commenced employment with O'Callaghan hotels. Correspondence to unblock it continued until 14th April 2011. She submits that a letter of condolence was sent to her workplace in December 2009 but it was never passed on to her.
2.20 Following the stillbirth of her baby, Ms O'Brien suffered an acute grief reaction. She submits that this was compounded by the work-related stress she endured in the months prior and following this tragic event. Ms O'Brien was referred to a psychiatrist. She remains under the care of a psychiatrist. On her psychiatrist's advice, she has not been able to return to gainful employment. Ms O'Brien is anxious not to blame the stillbirth of her daughter on the respondent. She is aware that tragedies happen. However, she submits that her energy was depleted by the difficulties she had with her employer and, therefore, found it more difficult to cope with the loss of her daughter. Her psychiatrist gave evidence at the hearing to say that Ms O'Brien had no previous psychiatric history prior to being referred to her in November 2009. The psychiatrist stated that there were two stressors - the grief reaction and the work-related stress. She went on to say that both had a negative influence on her mental health and that neither superseded the other in terms of impact.
2.21 The complainant submits that the respondent is in flagrant breach of the Acts on the grounds of gender and family status. It is submitted that there were a number of incidents that would constitute harassment within the meaning of the Acts:
- The respondent's aggressive response to the complainant's request to work a four-day week
- Mr A's statement on more than one occasion that she would not remain an employee if she had a third child
- The pressure put on the complainant to take redundancy
- While out on work-related stress leave and, in an advanced stage of pregnancy, the respondent continued to contact her and rely on a purported agreement to terminate her employment.
2.22 The complainant contends she was constructively dismissed. She submits that she could no longer trust the respondent after they tried to dupe her into resigning and showed no remorse after it was made clear to them that their actions were making her ill. She submits that their actions left her in no doubt that they did not want her to continue to work for them. There was no longer a relationship of mutual trust and confidence. Notwithstanding that the complainant had resigned with effect from the end of her maternity leave, she submits that the respondent sought to rely on a false agreement to terminate her employment during her maternity leave. The complainant maintains that their conduct was discriminatory in relation to her pregnancy and victimisatory regarding her assertion of her rights on the grounds of gender and family status.
2.23 The complainant submits that the following incidents constitute victimisation:
- When she asserted her rights and requested a four-day week during her second pregnancy, Mr A's hostile reaction and his statement that he would not be happy to retain her in his employment if she had a third child
- Applying pressure to resign after she informed the respondent that she was pregnant and intended not working during her maternity leave
- Not paying her for most of her third maternity leave when she was paid her full salary for the previous two maternity leaves
- Blocking access to the blackberry phone and fuel card provided to her by O'Callaghan hotels
2.24 The complainant's salary was €126,000 following a 10% paycut in January 2009. From 2003 to 2007, she also received a 25% bonus of her salary. O'Callaghan Hotels paid an annual pension contribution of 10% of her salary and a suit allowance of €2,000. She had a petrol card which had an approximate annual value of €1,200.
Summary of the respondent's case
3.1 The respondent readily acknowledges that the complainant performed very well in her role which was a very senior one in the company. Her duties included all of those usually associated with the Sales and Marketing Director for a major hotel group. Regarding the contribution she made to the company, the respondent maintains this was a team effort.
3.2 O'Callaghan Hotels refute that there was a sexist atmosphere in the organisation. The respondent points out that Ms O'Brien was paid her full salary during her maternity leaves in 2004 and 2008. The respondent states that it was the complainant herself who insisted that she remain fully involved in Sales and Marketing matters while on maternity leave. She set up a home office for this reason. They submit she never suggested getting a replacement for her while on maternity leave. Regarding signing the documents after having her first baby, the respondent points out that these were 'sign offs' for bonuses for her staff and that she requested that her husband would pick them up for her and bring them into the hospital to be signed.
3.3 The respondent admits that Ms O'Brien approached Mr A regarding the possibility of working a four-day week in September 2008 following the birth of her second child. However, because of the seniority of the complainant's position and the deteriorating economic climate, this was refused which they are fully entitled to do. Mr A denies saying that her employment would be terminated if she had a third child.
3.4 The respondent admits that its business experienced a sharp decline and this did have an effect on Mr A's disposition. Regarding asking for the business report which he had not asked for since 2006, Mr A does not deny this. He is entitled to look at all aspects of the business.
3.5 The respondent accepts that the complainant informed Mr A and Mr B that she was pregnant in June 2009. Both men congratulated her. Neither have any recollection of the complainant informing them that she previously had two miscarriages and that she wanted to have this baby in peace. Mr A's recollection is that he thinks that he met her only once either at the end of June or the beginning of July and that she agreed that she would leave the respondent's employment by taking what was to be referred as early maternity leave on 7th August and that she was to be paid her full salary and benefits until the 20th November 2009. During these discussions, O'Callaghan hotels submit that her only concern was the impact this would have on her State Maternity Benefit and her holidays. Mr A submits that this meeting was friendly. Mr A said there was no benefit to him in Ms O'Brien resigning as she was good at her job. He merely wished to facilitate her request to resign. Mr A stated in direct evidence at the hearing that it was not 'an enforced arrangement' and that she was 'extremely happy'. Mr B brought her for lunch. During the lunch, he submits that Ms O'Brien told him that she and her husband were in the process of buying land to build a house. It was in this context that Mr B said Mr A was well-connected - by that he meant Mr A was friendly with interior designers.
3.6 Later that day, Ms O'Brien came into Mr B's office and thanked him for being so supportive. She hugged him. He gave her a bottle of wine. He asked her to return her laptop which she did.
3.7 Mr B submits that Ms O'Brien asked him not to inform her colleagues or the Human Resources section that she would not be returning to work after she had the baby. Mr B said none of their meetings were aggressive. When the complainant informed Mr B on 17th July 2009 that she was not feeling well, he wished her a speedy recovery.
3.8 The respondent rejects that a dismissal took place. They submit she resigned. The complainant never raised a grievance while in the respondent's employment. The respondent suggests that this matter should be before the Employment Appeals Tribunal rather than this one.
3.9 They submit that many women had families while continuing to work with them.
3.10 Without prejudice to the defence raised, the respondent states that the maximum award that can be awarded to the complainant is €12,697.38 as Section 82 (4) states that ultimate quantum can be given if the complainant is not in receipt of remuneration at the date of the reference. The respondent ceased paying her on 20th November 2009. Therefore, when she submitted her complaint on 23rd December 2009 she was no longer in receipt of remuneration from O'Callaghan hotels.
3.11 The respondent further submits that matters relating to the complainant's first or second pregnancies and maternity leaves are out of time, as they are not mentioned on either EE1 form.
Conclusions of the Equality Officer
Preliminary issue - time limits
4.1 If I was to accept the respondent's contention that I cannot investigate incidents relating to the complainant's first and second pregnancies and consequent maternity leaves (Paragraph 3.11), I would have to ignore the recent Labour Court decision County Cork VEC and Ann Hurley and the High Court decision County Louth VEC v The Equality Tribunal and Pearse Brannigan . In the former decision the Labour Court stated that 'occurrences outside the time limit could only be considered if the last act relied upon was within the time limit and the other acts complained of were sufficiently connected to the final act so as to make them part of a continuum'. In Brannigan McGovern, J said:
I accept the submission on behalf of the respondent that the form EE1 was only intended to set out, in broad outline, the nature of the complaint. If it is permissible in court proceedings to amend pleadings where the justice of the case requires it, then a fortiori, it should be permissible to amend a claim as set out in a form such as the EE1, so long as the general nature of the complaint (in this case, discrimination on the grounds of sexual orientation) remains the same. What is in issue here is the furnishing of further and better particulars, although, it must be said, in the context of an expanded period of time. But under the legislation it is clear that the complaints, which are made within that expanded period, are not time-barred. That is not to say that complaints going back over a lengthy period would have to be considered as an issue of prejudice might arise. But this is something that would fall to be dealt with in the course of the hearing in any particular case.
Of course, it is necessary that insofar as the nature of the claim is expanded, the respondent in the claim must be given a reasonable opportunity to deal with these complaints and the procedures adopted by the Equality Officer must be fair and reasonable and in compliance with the principles of natural and constitutional justice
The complainant initiated the proceedings during her third maternity leave on the grounds of gender and family status. I am satisfied that the events that occurred during her first and second pregnancies are sufficiently linked so as to make them part of a continuum. Both the Labour Court and High Court cases provide clear authority to allow me to investigate these events.
Dispute of facts
4.2 In a case where there was significant conflict of evidence, it is common case that Ms O'Brien performed very well in her role as Sales and Marketing Director (Paragraphs 2.1 and 3.1).
4.3 I accept the respondent's contention that the complainant initiated installing a broadband connection at home so that she could stay involved with what was happening in the business while she was on maternity leave. Again, it is agreed by both sides that Ms O'Brien continued to do a substantial amount of work while on her first and second maternity leaves (Paragraphs 2.4, 2.5 and 3.2). She also received her full salary during both periods of maternity leave.
4.4 Regarding the complainant seeking a four-day week prior to her return to work from her second maternity leave, I accept that the respondent had valid reasons for turning her request down. However, I prefer Ms O'Brien's version of events as to what happened i.e. that Mr A's reaction was angry and that he did say he would prefer her not to be an employee of O'Callaghan hotels if she had a third child (Paragraphs 2.6 and 3.3). In these circumstances, it is easy to understand how she considered resigning and, only after Mr A apologised, did she agree not to.
4.5 In relation to what occurred leading to Ms O'Brien going on work-related stress leave, Ms O'Brien's account is more credible. She had a strong recall of details including those that do not assist her case. In contrast, both Mr A and Mr B were very specific regarding conversations that had limited relevance to this complaint e.g. the conversation with the customer at the teleconference mentioned in 2.9 and the high stool issue mentioned at 2.3 but are much vaguer regarding the substantive matter of this case. Neither could recall whether there was more than one meeting with Ms O'Brien before the early maternity leave/redundancy deal was settled and their evidence conflicted with each other as to who was at these meeting(s).
4.6 I am satisfied that both Mr A and Mr B did congratulate her when she announced that she was pregnant in 2009. However, it is clear from the events that followed that O'Callaghan Hotels did not wish to continue to employ her especially when Ms O'Brien said that she did not wish to work during this maternity leave. I find that when Ms O'Brien did not volunteer for redundancy, the termination of her employment was disingenuously repackaged as 'early maternity leave'. In hindsight, Ms O'Brien may have been naive to believe that when she refused voluntary redundancy that the matter would end. However, I accept her explanation that she previously had excellent working relationships with both Mr A and Mr B and therefore initially took them at their word i.e. that her 'period of confinement' would begin early and that she would return to work for O'Callaghan hotels after her maternity leave. The facts simply do not support the respondent's assertion that Ms O'Brien resigned. Had she done so, surely the respondent would have retained a copy of a letter of resignation, or a signed version of the draft agreement at 2.13 or some form of documentary evidence that would suggest that there was mutuality in the arrangement. If, as the respondent also suggests, that she intended resigning but then reneged on her part of the deal, why not allow her to change her mind when she was a good employee and they had facilitated other women continuing to work there while bringing up families?
4.7 I also accept the complainant's contention that Mr B was referring to Mr A's political connections rather than links with interior designers and that this was intended as a threat. The complainant and her husband gave direct evidence at the hearing that they had no intention of buying land or employing interior designers. I find that this was merely an assertion on the respondent's behalf to invent reasons why Ms O'Brien might wish to leave. I accept the respondent's contention that Ms O'Brien and Mr B had an amicable lunch meeting, that she hugged him afterwards and that he gave her a sample bottle of wine. However, I find that this happened while she understood the early maternity deal to mean that she would be returning to O'Callaghan hotels after her maternity leave.
4.8 The respondent's contention that Ms O'Brien was 'extremely happy' with the termination settlement, as long as her State Maternity Benefit and holidays were not affected, stretches credibility beyond its limits. That a woman in her thirties who had reached the upper echelons of the highly competitive tourism sector would not attempt to negotiate a better deal for herself than statutory redundancy is implausible. That her only concern would be protecting her weekly State Maternity Benefit payment of €262 when she would be losing her gross weekly salary of €2,423 is also far-fetched. I do not accept that Ms O'Brien resigned or that there was any mutuality in what O'Callaghan hotels purport to be an agreement.
4.9 Regarding the respondent's submission that other women continued to have three or more children and remain employees of O'Callaghan hotels, I accept this fully. However, it emerged at the hearing that none of these were as senior as Ms O'Brien.
4.10 While on sick leave, the complainant admits that she switched off her blackberry phone provided by the company on 31st July 2009. She tried to switch it back on approximately two weeks later but submits that the PIN code she normally used did not work. The letter from her solicitor to the respondent's solicitor on 31st August 2009 stated that the mobile phone provided by the respondent to her had been cut off. On 2nd December 2009, on her behalf, Byrne Wallace Solicitors wrote requesting access to the phone to retrieve messages of condolence from friends and colleagues. Instead it was cancelled and sent to 'recycling' due to lack of use on 16th December. When she was finally given authorisation by O'Callaghan hotels to deal directly with their mobile phone provider, she submits that the employee of the mobile phone company said to her that the phone had probably been 'suspended' in August which he said he meant 'unofficially cancelled'. Therefore, she never retrieved any messages from 31st July 2009 to when she finally gained access to the blackberry phone on 4th May 2010. The respondent states the complainant simply stopped using the phone at the end of July 2009. O'Callaghan hotels continued to pay the bill (service charge only as no phone calls were made, text messages or emails sent) until 16th December 2009 when it was cancelled due to lack of use. The respondent submits that the mobile phone provider sent the phone to recycling on their own volition without any reference to O'Callaghan hotels. On this issue, I prefer the complainant's version of events. The respondent sought the return of the phone and the fuel card by letter on 26th August 2009. They did not deny that the fuel card provided by them to her was revoked in August 2009. On the balance of probabilities, from the evidence adduced it is likely that the company mobile phone provided to her was also suspended at that time. Regarding the assertion that the mobile phone provider cancelled a phone while the bill was continuing to be paid without any reference to the bill-payer, I find hard to believe.
4.11 There are three issues for me to decide:
(i) whether the complainant was harassed within the meaning of Section 14A of the Acts and discriminated regarding her conditions of employment on the grounds of gender and family status
(ii) whether the complainant was discriminatorily dismissed on the grounds of gender and family status contrary to Section 8(6) (c) of the Acts.
(iii) whether the complainant was victimised within the meaning of Section 74 (2) of the Acts
4.12 In reaching my decision I have taken into account all of the submissions, written and oral, made by the parties. Section 6(2A) of the Act states that discrimination on the gender ground shall be taken to occur where, on a ground related to her pregnancy or maternity leave, a female employee is treated, contrary to any statutory requirement, less favourably than another employee is, has been or would be treated. Discrimination on the ground of family status (in the complainant's case as a parent) is also prohibited.
4.13 Section 85A of the Act sets out the burden of proof which applies to claims of discrimination. It requires the complainant to establish, in the first instance, facts upon which she can rely in asserting that she was discriminated against. 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.
Harassment/Conditions of Employment
4.14 Harassment is defined in Section 14A (7) of the Acts as any form of unwanted conduct related to any of the discriminatory grounds which has the purpose or effect of violating a person's dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person. Section 14A (1) states that harassment constitutes discrimination by the victim's employer in relation to the victim's conditions of employment. Therefore, I will examine harassment and conditions of employment together.
4.15 I am satisfied that the belligerent response to Ms O'Brien's request to work a four-day week and Mr A's comments about her remaining employed by O'Callaghan Hotels if she had a third child constitutes harassment within the meaning of the Acts. This is because it is linked to both her gender and family status and had the effect of creating an intimidating and hostile work environment for the complainant. However, in particular I find the events leading up to Ms O'Brien going on work-related stress leave to be grave harassment. She had eleven meetings with either Mr A or Mr B over a period of eight working days to seek her departure from the company. Ms O'Brien was pressurised to agree to something which that initially was a misrepresentation. When she realised exactly what was being asked of her, more pressure was applied in an attempt to impose a settlement which was not in her interest to agree to. Ms O'Brien informed Mr B, at the time, that she felt intimidated and was not sleeping but the harassment continued. In direct evidence, the complainant stated that she was used to dealing with difficult situations but 'had never been exposed to such aggression except on TV'. Applying this kind of pressure to force somebody to resign is not appropriate but, to do so, in the knowledge that she was pregnant, constitutes harassment on the ground of gender within the meaning of the Acts. The harassment she endured after she announced she was pregnant for the third time was significantly worse than what happened during her previous two full-term pregnancies. This links the harassment to the family status ground i.e. as a mother to two children already. The respondent did not submit any facts in evidence that would fall within the defence set out in Section 14A(2) of the Acts.
4.16 Therefore, the respondent has failed to rebut the complainant's prima facie case of harassment on the gender and family status ground.
Discriminatory Dismissal
4.17 The entire period of pregnancy and maternity leave constitutes a special, protected period as outlined in the Court of Justice of the European Union Decisions in Webb v EMO Air Cargo (UK) Ltd Brown v Rentokil Ltd and Dekker v Stichting Vormingscentrum . In Brown v Rentokill Ltd, the Court of Justice explains why pregnancy is a special protected period:
Article 2(3) of Directive 76/207 recognises the legitimacy, in terms of the principle of equal treatment, first, of protecting a woman's biological condition during and after pregnancy and, second, of protecting the special relationship between a woman and her child over the period which follows pregnancy and childbirth.
It was 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, women who have recently given birth or women who are breastfeeding, including the particularly serious risk that pregnant women may be prompted voluntarily to terminate their pregnancy, that the Community legislature, pursuant to Article 10 of Council Directive 92/85/EEC of 19 October 1992 on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding (tenth individual Directive adopted within the meaning of Article 16(1) of Directive 89/391/EEC) (OJ 1992 L 348, p. 1), which was to be transposed into the laws of the Member States no later than two years after its adoption, provided for special protection to be given to women, by prohibiting dismissal during the period from the beginning of their pregnancy to the end of their maternity leave. (my emphasis)
This Court of Justice judgement is especially prescient to this instant case. The Labour Court has found that 'only the most exceptional circumstances not connected with the condition of pregnancy allow a woman to be dismissed while pregnant. It is equally well settled law that the dismissal of a pregnant woman (which can obviously only apply to a woman) raises a prima facie case of discrimination on the gender ground. Once such a case has been raised the burden of proof shifts and it is for the respondent employer to prove that that the discriminatory dismissal did not take place.' Discriminatory dismissal on the family status ground is also unlawful.
4.18 I am satisfied that a dismissal occurred when Mr B wrote to Ms O'Brien on 25th August 2009 saying that her P45 would issue on the following 20th November. The complainant argued that this dismissal was invalid and that she would be resigning with effect from the end of her maternity leave - 3rd March 2010. Women, who have a stillborn baby, retain entitlement to 26 weeks maternity leave. However, I find that her employment was terminated by Mr B's letter i.e. that she was effectively dismissed from 20th November 2009. Nonetheless, if that had not been the case she would be entitled to claim constructive discriminatory dismissal i.e. because of the conduct of her employer the circumstances were such that it would be reasonable for the complainant to terminate her contract of employment. A respondent can avail of a defence for a dismissal during pregnancy or maternity leave if it can prove there are exceptional circumstances. The respondent has failed to prove that exceptional circumstances existed in this instant case. Therefore, the respondent should have continued to pay Ms O'Brien until the end of her maternity leave (i.e. her resignation would have been effective on 3rd March 2010) and the perquisites that came with the position should not have been revoked until then.
4.19 To reiterate, I find that O'Callaghan Hotels unilaterally terminated the complainant's contract of employment while she was on maternity leave. I find this to be a discriminatory dismissal on the ground of gender. Mr A threatened (twice) that she would not remain employed if she went on maternity leave for the third time. He followed through on this threat and this is clearly connected to her family status as a parent of two children. Consequently, I am satisfied that the complainant has established a prima facie case of discriminatory dismissal on the grounds of both gender and family status and the respondent has failed to rebut it.
Victimisation
4.20 Section 74 (2) of the Act states victimisation occurs where dismissal or other adverse treatment of an employee by his employer occurs as a reaction to a complaint of discrimination made by the employee to the employer, any proceedings by a complainant, an employee having represented or otherwise supported a complainant, the work of an employee having been compared with that of another employee for any of the purposes of this Act, an employee having been a witness in any proceedings under this Act, an employee having opposed by lawful means an act which is unlawful under this Act, or an employee having given notice of an intention to take any of the above actions.
4.21 I find that refusing to pay Ms O'Brien for most of her third maternity leave when she was paid her full salary during her previous two maternity leaves is an adverse reaction to the complainant asserting her rights under the Acts i.e. by first stating that she would not work during her maternity leave and then by not complying with the respondent's scheme to leave their employment. Of course, perquisites like a company mobile phone and a fuel allowance are within the gift of an employer. However, in this context, I find that blocking her fuel card and access to her mobile phone (without warning) in August when, by the respondent's own admission, she was still in the employ of O'Callaghan Hotels are acts of victimisation in that the respondent was attempting to punish her for opposing by lawful means an act which is unlawful under the Acts.
4.22 While the non-payment of her salary for most of her maternity leave had more serious financial consequences (she was only paid for 11 weeks instead of 26 weeks), I wish to also consider the delay in reactivating the mobile phone provided by O'Callaghan hotels to her. In this I am guided by the Labour Court decision, where it pointed out that in order to ensure the effectiveness of Employment Equality legislation 'the concept of victimisation should be construed as widely and liberally as can fairly be done and should be given a sufficiently wide ambit so as to encompass all forms of detriment inflicted on a worker by his or her employer for having committed a protected act.' On 2nd December 2009, the complainant's solicitor wrote to the respondent's solicitor to ask for temporary access to Ms O'Brien's work mobile to be restored as she wished to retrieve messages from friends and colleagues following the death of her daughter and to retrieve personal contact numbers. Ms O'Brien had phoned the respondent's mobile phone provider and they said that they merely required a letter of authorisation from O'Callaghan Hotels and they would arrange access to this blackberry phone. Through their solicitors, the respondent stated they were agreeable to this. However, it took nine letters between the solicitors and until 15th April 2010 before this letter of authorisation issued. In the meantime, the phone number had been cancelled and recycled. Therefore, because of the delay Ms O'Brien was never able to retrieve these messages. At all times, the respondent's solicitor said he was acting on his client's instructions. It was also at a time when the complainant, as admitted by the respondent, was on maternity leave and therefore still in the employ of O'Callaghan hotels. The respondent also was on notice that she intended pursuing a case under these Acts. While the nature of litigation is adversial and a respondent has the right to defend its position robustly, I find this obtuse delay to a simple request to have been vindictive, unnecessarily upsetting to Ms O'Brien and a further act of victimisation.
4.23 Having evaluated all the evidence adduced to me, I am satisfied that the complainant established facts of sufficient significance to raise a presumption of victimisation and therefore the probative burden is transferred to the respondent. There is nothing in the evidence tendered by the respondent which rebuts that presumption of victimisation.
Redress
4.24 Regarding the respondent's argument that the maximum award that the complainant is entitled to is €12,697.38, (Paragraph 3.11) I find this to be a mistaken interpretation of the Acts. Section 82 (4) clearly states that:
The maximum amount which may be ordered by the Director
or the Labour Court by way of compensation under subsection (1)(c)
or by that Court under subsection (2)(b), in any case where the complainant
was in receipt of remuneration at the date of the reference
of the case, or if it was earlier, the date of dismissal, shall be an
amount equal to 104 times either --
(a) the amount of that remuneration, determined on a weekly
basis, or
(b) where it is greater, the amount, determined on a weekly
basis, which the complainant would have received at that
date but for the act of discrimination or victimisation in
question,
and in any other case, shall be £10,000. [my emphasis]
The respondent is correct in saying that the complainant was not in receipt of remuneration at the date of reference of the case i.e. 23rd December 2009. However, 82(4) clearly states that the date of dismissal is the effective date if that date is earlier than the date of reference. In this instant case, that date is 20th November 2009. Up to that date, the complainant was in receipt of her salary of €126,000 per annum. Therefore, the maximum award I can order is two years of salary for discrimination and two years of salary for victimisation.
4.25 In calculating redress for the complainant, I must be cognisant of a number of considerations. Ms O'Brien excelled in her role as Sales and Marketing Director with O'Callaghan hotels for six years which she combined with having a family. When she informed her employer that she was pregnant with her third child and that she intended to avail of her statutory right to maternity leave (away from the office), they sought to obtain her departure. I accept her psychiatrist's evidence that the difficulties she had with the respondent, as well as the stillbirth of her daughter, had a profound harm on her wellbeing. I am also guided by Article 25 of the recast Directive which states penalties must be effective, proportionate and dissuasive . I am satisfied that compensation rather than re-engagement or re-instatement is the most effective form of redress in this instant case. The redress must be proportionate to Ms O'Brien's salary i.e. the Acts are designed to protect all employees from unlawful discrimination including those who are well-paid. The award must also dissuade O'Callaghan hotels and other employers from unlawful discrimination. For the avoidance of doubt, I am awarding redress for harassment and discriminatory dismissal only for the events described in Paragraphs 4.14 to 4.19 and awarding redress for victimisation only for what is described in Paragraphs 4.20 to 4.23.
Decision
I have concluded my investigation of Ms O'Brien's complaint and hereby make the following decision in accordance with Section 79(6) of the Acts. I find that:
(i) the respondent harassed the complainant on the ground of gender and family status contrary to Section 14A of the Acts and this also constitutes discrimination regarding her conditions of employment
(ii) the respondent discriminatorily dismissed the complainant on the grounds of gender and family status
(iii) the respondent victimised the complainant within the meaning of 74(2) of the Acts.
In accordance with Section 82 of the Act, I order the respondent pay the complainant:
(a) €220,500 (the equivalent of 21 months salary) in compensation for the harassment and discriminatory dismissal
(b) €94,500 (the equivalent of 9 months salary) in compensation for the distress caused by victimisation.
(c) pursuant to Section 82(5)(b) of the Acts, pay the complainant interest at the Courts Act rate in respect of half of the amounts above in respect of the period beginning on 23rd December 2009 (being the date of the reference of the complaint) and ending on the date of payment. I am only awarding interest on half the amount as I am precluded from awarding interest in relation to discrimination and victimisation on the family status ground.
The total award of €315,000 (plus interest) is redress for the infringement of Ms O'Brien'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).
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Orlaith Mannion
Equality Officer
6th February 2012