THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2011
Decision DEC - E2012 - 017
PARTIES
Ms A.
and
A Company (represented by Ms Cathy McGrady, B.L., instructed by Brian O'Brian Solicitors)
File References: EE/2008/533
Date of Issue: 14th February 2012
HEADNOTES: Employment Equality Acts - Sections 6 and 8 - Gender (Pregnancy) - conditions of employment, harassment, discriminatory dismissal.
1. Claim
1.1. The case concerns a claim by Ms A. that the respondent company discriminated against her on the ground of gender contrary to Section 6(2)(a) of the Employment Equality Acts 1998 to 2008, in terms of dismissing her while she was pregnant and harassing her in relation to her pregnancy.
1.2. The complainant referred a complaint under the Employment Equality Acts 1998 to 2008 to the Director of the Equality Tribunal on 12 August 2008. A submission was received from the complainant on 7 May 2009. A submission was received from the respondent on 17 June 2009. On 27 January 2011, in accordance with his powers under S. 75 of the Acts, the Director delegated the case to me, Stephen Bonnlander, 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. As required by Section 79(1) of the Acts and as part of my investigation, I proceeded to hold a joint hearing of the case on 14 December 2011. The complainant was given an opportunity to submit additional materials at the hearing of the complaint, which were received on 30 December 2011. The respondent's response was received on 13 January 2012.
2. Summary of the Complainant's Written Submission
2.1. The complainant started working for the respondent in November 2007 in a marketing role. In February 2008, she advised her supervisors that she was pregnant. In March 2008, she had a meeting with the Managing Director regarding time off for ante-natal visits, maternity leave and holiday arrangements. She was told that she could have time off for ante-natal appointments.
2.2. The complainant further states that she was asked by her superiors not to talk that much about her own pregnancy, due to another staff member having been unsuccessful with an attempt at IVF treatment. The complainant objected to this.
2.3. The complainant also states that difficulties arose with her supervisor in relation to medical problems related to her pregnancy, and also unrelated to her pregnancy, like a chest infection the complainant suffered from in May 2008. Her supervisor at one point asked the complainant to report to work after her ante-natal appointment to make up the lost time.
2.4. On 6 June 2008, the complainant was told that her performance was unsatisfactory, in contrast to an earlier performance review in which she was told her performance was satisfactory. She was further advised that her probationary period would be extended by a further 3 months. On 13 June 2008, the complainant was told by the Managing Director, Mr D., that due to the recession and falling sales, she would be let go. According to the complainant, Mr D. also told her that four foreign nationals who worked in the nurseries would also have their employment terminated.
2.5. The complainant states that she decided not to work out her notice and left the company on 16 June 2008.
3. Summary of the Respondent's Written Submission
3.1. The respondent denies discriminating against the complainant as alleged or at all. It submits that performance issues had arisen with the complainant, and that her probationary period was extended to allow her to address these. The respondent states that the complainant's employment, together with that of four other employees, was terminated by reason of redundancy.
3.2. The respondent also denies harassing the complainant within the meaning of the Acts in relation to her pregnancy, and states that on the contrary, the complainant's supervisor strove to be supportive of the complainant at all times.
4. Conclusions of the Equality Officer
4.1. The issues for decision in this case are whether the complainant was discriminatorily dismissed, or discriminatorily selected for redundancy within the meaning of the Acts and whether she was harassed within the meaning of the Acts in relation to her pregnancy.
4.2. In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to S. 85A of the Acts. 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.
4.3. The respondent is a small, family-run business. Ms C., the Marketing Manager, is the sister of Mr D., the Managing Director. The complainant took up employment with them as a Marketing Assistant, reporting to Ms C. in November 2007.
4.4. With regard to the complainant's complaint of harassment, the complainant stated that she was not aware of any anti-harassment policy or grievance procedure the respondent might have. With regard to her specific complaint, that she was asked by the Buying Manager Mr B., a male employee not related to the family, to "tone down the baby talk", because of the IVF treatment Ms C. was undergoing at the time. The complainant stated in evidence that two other staff members were also pregnant at the time and spoke about it quite often. The complainant feels less favourably treated compared to her pregnant co-workers as a result.
4.5. However, she further stated in evidence that when she raised the topic with Ms C., her supervisor, Ms C. clarified that Mr B. had no right to make any such demands on her, and explained that she, Ms. C., had simply confided in him one day that she found it difficult to work in an office staffed with pregnant women while attempting to become pregnant through IVF. According to the complainant, Ms C. assured her that she should not feel guilty about being pregnant. Ms C. further said that she would talk to Mr B. about his inappropriate intervention. This evidence was fully confirmed by Ms C. for the respondent. After the conversation she had with Ms C., the complainant nevertheless chose not to discuss her own pregnancy any further.
4.6. Looking at all of the evidence, I am satisfied that this part of the complainant's case can not succeed. First of all, while the complainant may have felt that she was less favourably treated by this request, "less favourable treatment" within the meaning of the Acts can not arise between two or more pregnant women as per the comparator definitions laid out in S. 6(2) of the Acts.
4.7. In terms of the complainant's contention that her treatment constitutes harassment, it is difficult to see how a request "to tone down the baby talk", in and of itself, could be construed as such. Mr B.'s intervention may be seen as somewhat clumsy and one-sided, and from Ms C.'s evidence it is clear he acted without authorisation. However, in the context of his knowledge that Ms C. was trying to become pregnant through IVF, it could argued that he was concerned for Ms C.'s emotional well-being and that his request could equally be interpreted as trying to ensure common courtesy towards Ms C. Another employee might have welcomed receiving such information, and while the test set out for harassment in S. 14(7) of the Acts is a subjective one, I nevertheless find that the impugned remark, even if it discomfited the complainant, cannot be said to be so grave as to "violate [her] dignity and create an intimidating, hostile, degrading, humiliating or offensive environment" for her.
4.8. Finally, I am satisfied from the undisputed evidence of the complainant, that the respondent, and Ms C. in particular, moved to clarify and rectify the situation as soon as they had knowledge of it and that the complainant's rights were confirmed to her.
4.9. The complainant also contends that difficulties arose with her attending her ante-natal appointments. She submitted the relevant emails between her and Ms C. in evidence after the hearing. Having read those, I am satisfied that these difficulties did not exceed the normal business planning challenges of trying to fit in recurring medical appointments with the demands of a small business. I find Ms C.'s request to the complainant, to have her ante-natal appointments outside business hours if possible, to be reasonable. In particular, I am satisfied that one somewhat curt emailed response from Ms C. which arose out of a miscommunication involving several parties, does not constitute harassment as claimed by the complainant. It reads: "Why ask me then? You never said to me [Mr D.] said it was ok... Please try not bother me if you already have an answer". Ms C. was out of the office on business at the material time, and the message was sent from a hand-held device. While it speaks of some degree of stress and impatience on the part of Ms C., I am satisfied that the message is within acceptable limits of management communications. The complainant also contended that Ms C.'s tone towards her changed after she became pregnant, and submitted examples of friendly, chatty emails she received from Ms C. at the beginning of the employment relationship. However, the complainant submitted examples of other concisely worded emails sent to other staff and also to Ms C.'s brother, which do not support the complainant's contention that Ms C.s change in communication style was specifically related to her pregnancy. I am further satisfied from the content of these mail that these communications do not constitute harassment within the meaning of the Acts.
4.10. I turn now to the complainant's complaint of discriminatory dismissal. While it is settled law that dismissing a pregnant woman can only be legal in special circumstances unconnected to her pregnancy, the respondent is arguing that due to a sharp downturn in business, it needed to make the complainant redundant.
4.11. It is part of the complainant's case that when she had her performance review in 21 May 2008, she was led to expect continuing employment with the respondent. She further contends that while her performance review was quite positive, whereas she received a letter from Ms C. on 6 June 2006 which highlighted aspects of her performance which Ms C. was unhappy with, and that Ms C. wished to extend her probation period by a further three months. According to the complainant, two weeks later, she was made redundant.
4.12. By way of providing a background to the complainant's redundancy, the respondent stated in evidence that a lot of business had depended on the past construction boom. The respondent also sells to retail centres and for export, and had experienced continuous growth from 2000 to 2007, with half of its annual turnover generated in March, April and May of each year. In order to assist Ms C. as Marketing Manager, the complainant was taken on as Marketing Assistant in November 2007, just a few months before the collapse of the housing boom. According to Mr D., the Managing Director, the company's turnover diminished by €550,000 year-on-year in the first half of 2008. He stated that he received the accounts for April 2008, which made this precarious situation clear to him, in the first week of June 2008, when he met with the company's Financial Controller. The figures were produced in evidence at the hearing of the complaint. In addition, Ms E., the Financial Controller, confirmed them in her oral evidence.
4.13. Ms C., while a Director of the company, stated that as Marketing Manager, she would not be involved in the day-to-day financial management of the business, and was not aware of the severity of the financial situation when she had the performance review with the complainant, or even when she wrote the letter of 6 June. According to Ms C., she fully expected to continue to employ the complainant. She said that she first learned of the respondent's precarious business situation in a family meeting called by Mr D. in the second week of June.
4.14. Mr D. stated that the biggest cost for the business was labour - wages and salaries - and that therefore it was decided at the meeting to reduce staff. In the first instance, Mr D. and the Financial Controller looked at recently added roles which were not absolutely necessary. The last roles created were the complainant's and the role of Credit Controller. However, it was decided that the Credit Controller was more important to the business than the complainant's Marketing Assistant role, whose duties could be subsumed into Ms C.'s position as Marketing Manager. One employee, who was taken on after the complainant, was not made redundant at the material time because she had a vocational qualification specific to the respondent's business which the respondent deemed an important skill set. Several staff in production and despatch/delivery were also made redundant at the same time as the complainant. As Mr D. stated in evidence, their redundancies arose because the business needed to anticipate sales in a year's time, which was the typical lead-in time of getting their product to customers. Mr D. stated that the criteria used to select staff for redundancy were their roles and skills. Mr D. strongly disputed that the complainant's pregnancy was in any way connected to her selection for redundancy and stated that the business had facilitated no less than 11 maternity leave arrangements in recent years. However, the impact of the recession has meant that the company had to reduce its staff from 41 to 18 since the onset of the recession.
4.15. On 13 June 2008 Mr D. announced the redundancies in an email to all staff as follows:
I'm sure you are all aware that our financial performance this year so far has not been good and the general outlook going forward is poor with the Irish economy heading for recession and the continued difficulty with the sterling exchange rate affecting our exports. Due to the position we are in we have no choice but to cut back on spending and reduce overall staff numbers across the board. Building work on site, once the current work is completed, will cease and much to our regret I have had to let staff go. Any staff who have been let go we would like to thank for their work while here and thank them for their understanding in these circumstances.
We are confident in the medium to long term future for the company and would like to thank all staff for their efforts in these times.
The complainant responded to this email, approximately an hour later and also directed to all staff:
Hi All
As you know, I am one of the members who have been made redundant due to poor financial performance for the company this year. My employment here is due to be terminated Friday 20th June 2008, but due to personal reasons, I am actually finishing today instead.
I would like to thank [Mr D.], [Ms C.] and [Mr B.] for this opportunity to work as a Marketing Assistant with [the respondent company]. I have certainly learned a lot about the company, and realize there's more to [the company's products] than I expected. It has been a pleasure to work with you as colleagues, and I am sure I will stay in contact with those I consider my friends!
I would like to wish all the staff in [the respondent company] the very best for the future!
4.16. From all of the respondent's evidence, which was not disputed by the complainant, I am satisfied that genuine economical reasons which were unconnected to the complainant's pregnancy led to her selection for redundancy. The Labour Court, in Winston Jewellers v. Ms Anne Mason [EED032], has confirmed that such a termination of employment is legal even in light of the special protections afforded to pregnant women in the workplace. Accordingly, the complainant's complaint of discriminatory dismissal can not succeed.
5. Decision
5.1. Based on all of the foregoing, I find, pursuant to S. 79(6) of the Acts, that the respondent company did not discriminate against Ms A. in her terms and conditions of employment, by permitting her harassment pursuant to S. 14 of the Acts, and did not discriminatorily select her for redundancy because she was pregnant contrary to S. 8(6) of the Acts.
______________________
Stephen Bonnlander
Equality Officer
14 February 2012