EDA128

Background

The background against which this dispute arose, as admitted or as found by the Court, can be summarised as follows:

The Respondent is a cold, chill and storage Company and is also involved in other ancillary activities. Its principal facility is located at Ballymount in Dublin.

The Complainant commenced employment with the Respondent on 9^thOctober 2006 as a personal assistant / bookkeeper. She was furnished with a contract of employment in writing on 28^thNovember 2006. Her salary on the commencement of the employment was fixed at €28,000 per annum. This was later increased to €30,000, after the Complainant had been in the employment for two months and one month earlier that was provided for in a commitment given to her on recruitment.

On or about 10^thApril 2007 the Complainant informed the Respondent that she was pregnant. She further advised the Respondent that she would require time off to attend anti-natal hospital appointments. The Respondent asked the Complainant to furnish it with information in writing concerning the legal entitlements of pregnant employees. The Complainant took issue with this instruction and told her manager that it was the Respondent’s responsibility to inform itself on these matters.

Issues arose between the Complainant and the Respondent in relation to the scheduling of her hospital appointments. The Respondent wanted the Complainant to arrange these appointments at times that were least disruptive of its business. The Complainant was unable to change the appointments from the times given by the hospital. Issues also arose concerning sick leave taken by the Complainant in relation to her pregnancy and the payment for these absences. The Complainant suffered complications in her pregnancy resulting in impaired mobility. The Complainant contends that the Respondent failed to provide her with reasonable facilities to accommodate this disability. Issues also arose between the parties in relation to certain changes in the physical environment in which the Complainant was required to work, which she contends, adversely impacted on her condition.

It is common case that the interaction between the parties on these matters caused their working relationship to deteriorate.

In or about August 2007 a further issue arose between the Complainant and her then employer concerning what the Complainant regarded as the Respondent’s failure to include her in a performance appraisal for the purpose of assessing a pay increase. The Complainant also took issue with the Respondent’s failure to pay her a holiday bonus to which she considered herself entitled. The Complainant consulted the Equality Authority on this matter and communicated with the Respondent by e-mail reciting the advice that she had obtained. The Managing Director took exception to the Complainant having raised the matter of the bonus with a statutory agency. While the Complainant was paid the bonus the Respondent decided to discontinue these payments for all employees because of what had occurred and informed the Complainant’s work colleagues accordingly. The Complainant asserts that in consequence of the Respondent’s actions she was subjected to adverse treatment by her work colleagues and that this amounted to victimisation by the Respondent.

A further issue arose between the Complainant and her manager concerning the completion of a form for the purpose of claiming maternity leave. The form was given to the Respondent for completion in mid-July 2007 and was not completed 27^thAugust 2007. This for was due to be returned to the Department of Social Protection by 3^rdSeptember 2007. The Complainant contended that the completion of the form was being unduly delayed. The manager took the view that she was being pressurised to deal with the matter immediately before she went on annual leave and in circumstances in which she was trying to deal with other pressing issues.

On 7^thSeptember 2007 the Complainant was asked to attend a meeting with the Managing Director and a Director of the Respondent at 5.20pm, some ten minutes before she was due to finish work and commence her annual leave. At this meeting the Complainant was informed that her employment was being terminated with immediate effect due to redundancy. The Complainant was due to commence her maternity leave shortly after her return from leave. The Respondent offered to pay the Complainant her full salary, including four weeks’ pay in lieu of notice, up the end of October 2007 when her maternity leave was due to commence.

The Respondent contends that a genuine situation of redundancy existed at the material time in consequence of staff reorganisation and that the dismissal of the Complainant arose solely because of the redundancy. The Complainant contends that her dismissal was on grounds of her pregnancy or matters related thereto.

Position of the Parties

The Respondent

Evidence was given on behalf of the Respondent by Ms Collette McCrann who is a Director of the Respondent and by Mr William Fleming who is Managing Director of the Respondent. Their evidence can be summarised as follows:

Evidence of Ms McCrann

This witness outlined the history of the Complainant’s employment with the Respondent. She was the Complainant’s immediate manager. According to Ms McCann the Complainant’s work performance was entirely satisfactory and she characterised the working relationship between them as excellent.

The witness confirmed that in early April 2007 the Complainant told her that she was pregnant. She congratulated her and wished her well. The witness said that she had three pregnancies while employed by the Respondent but had not dealt with any other pregnant employees. The witness thought that she should obtain advice on the Complainant’s entitlements, and the Respondents responsibilities, in relation to her pregnancy as it was some time since she had been required to familiarise herself on such matters. Two days after she was told of the Complainant’s pregnancy the witness asked the Complainant to go to the computer and run off the relevant information on the Citizens Information Centre website. According to Ms McCrann the Complainant said that this was information that the witness should have and she seemed annoyed at being asked to obtain the information. The witness said that it was necessary to update the Respondent on its legal responsibilities and that this would help her to understand the Complainant’s entitlements. The Complainant obtained the information and furnished it to the witness.

Turning to the Complainant’s hospital visits, Ms McCrann recalled an occasion on which the Complainant told her that she would have to leave at 1.pm to attend a hospital visit. The witness asked the Complainant if it would be possible for her to arrange visits on her way into work. She pointed out to the Complainant that they were a small company and the timing of her appointments could cause the Respondent considerable inconvenience and disruption. The Complainant reacted very badly to this suggestion. The Complainant said that she had a right to go whenever she wished. The Complainant told her that she had to accept whatever appointments were offered by the hospital. The witness suggested to the Complainant that if she (witness) could speak with the appropriate person in the hospital it might be possible to arrange the appointments at a time which was less disruptive of the business. The Complainant objected to the witness adopting such a course. From then on the appointments went ahead as arranged by the Complainant and the witness did not pursue the matter further. Ms McCrann denied having told the Complainant that she would have to arrange her hospital visits around the needs of the Respondent’s business. She said that her comment in that regard was merely a suggestion. The witness was asked if she had told the Complainant that she (witness) would have to talk to Mr Fleming about the Claimants hospital appointments. She said that she had not.

The witness was asked if she had told the Complainant that the time spent attending hospital appointments would have to come out of her holidays. The witness denied having said that. She said that she accepted that the Complainant was entitled to time off for hospital appointments.

The witness said that there were about 7 seven appointments, none of which were stopped.

The Court was told that shortly after the initial discussion concerning her hospital appointments the Complainant started to communicate with the witness by e-mail. She regarded that as strange. The witness recalled another occasion on which the Complainant came into her and demanded that her maternity form be completed. That was late in the pregnancy. The witness said that she felt that their relationship deteriorated after that.

When asked to comment on the Complainant’s complaint that she was subjected to criticism concerning her work the witness denied that the Complainant has been subjected to any criticism.

The witness acknowledged that the Complainant had been absent from work due to morning sickness but denied that she had taken issue with her absences. In particular, the witness denied that she had told the Complainant that morning sickness was unacceptable as an excuse for not coming to work.

The witness was asked if a risk assessment had been undertaken. She said that there were no risks which could have posed a hazard to the Complainant. The witness described the physical layout of the premises. She said that there was an office on the ground floor in which the Complainant worked. She said that the Complainant was not required to move around the premises. The witness told the Court that she was never made aware that there was a possibility that the Complainant would have to use crutches due to a pregnancy related complication.

In relation to the maternity benefit form, the witness said that the Complainant gave her the form in or about mid-July 2007 and asked her to complete it. On or about 27^thAugust the Complainant came back to ask her about the form and demanded that it be filled in immediately. At the time the witness said that she was busy and did not have the time to fill in the form. She told her that she would deal with it as soon as possible. At the time the witness was going on holidays. She told her that it would be dealt with when she returned from holidays. The witness said that the maternity benefit form was filled in by a colleague the next day.

While Ms McCrann acknowledged that the relationship between her and the Complainant has deteriorated she did not know why that had occurred.

In dealing with the circumstances surrounding the termination of the Complainant’s employment, Ms McCrann provided the Court with details of changes in the structure of the Respondent’s business activities that occurred in 2007. She said that the caf� business had closed down resulting in financial loss to the Respondent. It also had an involvement in a social housing project in the UK and this too had performed badly. Certain contracts in which the Respondent was involved were also lost in this period. The witness also described changes in staff structure that had occurred at the material time. She said that a paper business that the Respondent operated on the north side of the city had been relocated to the facility in Ballymount in which she worked and that the manager of that facility, Mr C, was relocated there. This person took over some of the administration work in which the witness had been involved. The Respondent also agreed to employ a warehouse manager, Mr E, in or around August 2008, to take over the role previously undertaken by other staff members who had left the employment, although this person actually commenced employment after the Complainant’s dismissal. Apart from working in the forecourt this person also took over some of the office administration work previously undertaken by the witness. According to Ms McCrann, as a result of these changes her work load had significantly diminished and there was insufficient work in the administration of the business for herself and the Complainant. The Court was told that in these circumstances it was decided that the Complainant’s role should be taken over by the witness, as she had previously undertaken these duties, and it was decided to make the Complainant redundant.

The witness recalled the events of 7th September 2007. She told the Court that the Complainant was summoned to a meeting at approximately 5.20 in the afternoon. The witness accepted that the Complainant was not given notice of this meeting. Mr Fleming, the Managing Director, and the witness were present at this meeting. The Complainant was told of the difficulty that had arisen and of the decision to make her redundant. The Complainant asked if her husband, who was waiting outside the premised to collect her from work, could attend the meeting. The Respondent agreed that he could.

At the meeting the Complainant was told that because of the staffing and business changes described she would be taking over the Complainant’s role. The Complainant was told that she would not be required to work out her notice and that she could clean out her desk and leave that evening. The Respondent agreed to pay the Complainant up to the expected commencement date of her maternity leave, including one month’s pay in lieu of notice. When asked why the Complainant had not been warned of the impending redundancy the witness said that the Complainant should have known that there was a falloff in her work and the redundancy should not have come as a surprise to her. The witness agreed that no one else was considered for redundancy. She said that it was the Complainant’s job that had become redundant. The witness also agreed that she never considered retraining the Complainant to take on the role for which the new warehouse manager had been employed.

The witness said that the administration work associated with the caf� business was a significant consideration in the decision to employ the Complainant. It closed some two months after the Complainant commenced employment. They had been trying to hold on for as long as possible. The witness said that there was also a significant amount of administrative work associated with the social housing projects and this too had diminished. The witness agreed that the caf� business had been in decline for some time before the Complainant was employed.

The witness agreed that Mr E was employed after the Complainant was let go but she maintained that he did not do the comparable work to that of the Complainant.

Evidence of William Fleming

Mr William Fleming, who is Managing Director of the Respondent, gave evidence.
Mr Fleming referred the Court to a document which he had prepared headed‘Operational and Staff Changes in Trailercare Holdings’dated 7^thSeptember 2007. This document, which was put in evidence, set out the operational and staff changes upon which the Respondent relied in making the Complainant redundant. It was created for the purpose of the meeting with the Complainant at which her employment was terminated and it was given to her at the meeting of 7^thSeptember 2007. Mr Fleming took the Court through the detail contained in the document.

This witness said that the paper business, formally located on the north side of the city was transferred to the Ballymount site. Mr C, who managed that business, transferred to Ballymount. He was a senior person in the Company and his relocation resulted in some restructuring of working arrangements. This document also referred to the loss of the Respondent’s biggest customer, which accounted for approximately 65% of the Respondent’s business. The caf� business operated by the Respondent had also closed. The Respondent had an investment in social housing and it was found that this was not working out with the result that the Respondent was forced to sell on a number of properties.

The witness said that there were other significant changes in staffing arrangements around that time. The most significant of these changes was the arrival of Mr C. According to Mr Fleming both he and Ms McCrann had managed the various aspects of the Respondent’s business ventures that had gone into decline. Mr C had managed the paper business.

Mr Fleming referred to other changes. He said that in the first quarter of 2007 the warehouse manager, Ms F, had left the employment. He had tried to bring in people who were not experienced in warehousing to replace Ms F. He had recruited a Mr S and a Ms G but that did not work.

Changes were made in the reporting structures within the business during 2007. Mr C took over responsibility for administration and that released Ms McCrann from those duties. Furthermore, the loss of the main business of the major customer, previously referred to, reduced the administrative requirements of the business. During this time the Respondent did take on a driver. Ms G, who was employed to replace Ms F, left the employment in July of that year. The witness told the Court that he then decided that the business needed a good warehouse manager. He approached the manager of a company with which the Respondent did business (Mr E) and asked him if he would take on the role of warehouse manager. Terms were agreed on which Mr E would join the Respondent. While terms were agreed in or about August of that year Mr E’s commencement date was to be in September.

Dealing with the basis for the decision to make Complainant redundant, the witness said that when Mr E agreed to join the business it became clear that Ms McCrann would be released from a significant amount of her workload. The Respondent had incurred a significant trading loss, of the order of €500k, in the year up to 30^thJune 2007. According to the witness some remedial action was required to deal with the situation that had emerged. There was a requirement for administrative work and the Complainant had done that job well. It was clear, however, that Ms McCrann was being freed of much of her workload. They were then faced with a situation in which there were two people able to do the same job and only one was required. In these circumstance the decision was taken to make the Complainant redundant and for Ms McCrann to take over her role. Mr Fleming told the Court that having come to that decision he decided that it would be best to tell the Complainant sooner rather than later. He arranged to meet the Complainant on the evening of 7^thSeptember and inform her of the decision. The pivotal consideration in arriving at that decision was that Ms McCrann had become free to take over the role of the Complainant.

The Complainant was given a letter dated 7^thSeptember 2007 informing her that her employment was terminated with immediate effect and that payment in lieu of notice would be provided.

Mr Fleming accepted that the difficulties in the trading position of the Respondent were apparent at the time the Complainant was employed. When asked to what degree the losses incurred by the business had influenced the decision to make the Complainant redundant, Mr Fleming told the Court that this was not a material consideration. Mr Fleming also agreed that Mr E had in fact commenced employment with the Respondent after the Complainant had been made redundant. He agreed that Mr E was the effective replacement for Ms F. He said that he had not considered assigning this role to Ms McCrann so as to avoid making the Complainant redundant nor had he considered assigning this role to the Complainant and providing her with any necessary training. Mr Fleming also accepted that another contract had been obtained after the loss of the major customer previously referred to in his evidence.

Turning to the remedial work undertaken at the Robinhood premises, Mr Fleming told the Court that the building was flooded in or around July 2007. Ground floor offices were principally affected. It became necessary to take up carpets and replace them. Around the same time it was decided to change the layout of the office and this involved the demolition of a wall. The work extended over a two week period. According to Mr Fleming during the demolition and reconstruction work a strong plastic cover was used to prevent dust and other building particles from entering the office area where staff, including the Complainant, worked. Re-painting work was undertaken at weekends when the premises were not being used by staff. The witness accepted that there was a noticeable smell of paint in the office and an extractor fan was used to ameliorate this smell. The witness accepted that the Complainant had raised issues with him concerning the physical state of the building at that time but he was satisfied that adequate measures had been taken to eliminate any inconvenience or discomfort occasioned by the works.

With reference to the Complainant’s requirement to use crutches in consequence of her pregnancy related condition, Mr Fleming said that she had never actually used them at work. He said that the Complainant never had to use stairs in the course of her work. The witness accepted that approximately two weeks before she left the employment the Complainant had told him that she would probably be required to use crutches because of a pregnancy related complication. He said that there were no hazards or dangers affecting the Complainant in the workplace and there was no need to involve her in undertaking a safety assessment.

Turning to the Complaint’s complaints at not being given a performance related pay increase in 2007, the witness said that the use of that term was somewhat of a misnomer. It was not the practice of the Respondent to assess the performance of staff for the purpose of awarding pay increases. He said that the business is driven by the demands of customers and this, rather that the individual performance, determined the level of productivity. The witness said that almost without exception he personally decided what increases, if any, should be applied. He generally took into account the financial circumstances of the business and the increases in the cost of living since the last increase in deciding on adjustments in pay. The review date was 30^thJune each year. He said that any increase decided upon did not apply to staff members with less than a full year’s service. It was Mr Fleming’s evidence that the reason for not including the Complainant in the review at 30^thJune 2007 was that she did not have the requisite full years’ service at that point. The witness accepted that two named workers, with less than a full years’ service, had received increases of €4,000 each in July 2007. Mr Fleming said that the two workers in question were initially employed at €2 per hour less than the standard rate for their job and he had promised to bring their rate up to the standard rate subject to satisfactory service. He felt compelled to honour his word in that regard. The witness denied that the Complainant had received a commitment to a salary review.

In relation to what was described as a holiday bonus, Mr Fleming told the Court that it was his practice to make special payments to staff when they went on their annual holidays as a ‘thank you’ gesture. He said that these were small amounts of around €100. They were paid personally by the witness in cash from his own resources and not from the Company accounts. Mr Fleming characterised these payments as gratuitous and informal. Staff did not have a contractual entitlement to these payments.

Mr Fleming told the Court that he became aware that in or about 9th August 2007 the Complainant mentioned to Ms McCrann that she was not included in a pay review and had not been paid a bonus. The witness was on holidays at that time. According to Mr Fleming only one employee, who had less than one year’s service was paid a bonus that summer and that was in error. He said that Mr C did not understand the basis for these payments and had paid a bonus to a named employee with less than the required service without the witness’s knowledge.

The Complainant insisted that this matter be dealt with and had sent an e-mail to the Respondent stating that she had consulted the Equality Authority in the matter and believed that she was entitled to receive the payment. Mr Fleming paid the Complainant the disputed bonus but he accepted that he felt aggrieved that she had raised the matter with a statutory authority. He said that had she come to him directly he would have paid the bonus.

It was Mr Fleming’s evidence that because the Complainant had elevated the question of the bonus to what he described as ‘another level’ he was forced to reconsider his pervious practice in this matter and decided that the payment of bonuses would have to be discontinued. Some weeks later he informed all staff accordingly. He said that he informed staff that a situation had arisen whereby the informal practice could not continue and in consequence the bonuses would no longer be paid. He said that he had not mentioned the Complainant’s name in the course of his discussions with other staff and he was not aware that she had been ‘victimised’ by others in consequence of what he had told them. When reminded that in his evidence to the Equality Officer he said that he had told the staff that the matter had been raised with the Equality Authority, the witness accepted that this was probably what he had said.

In dealing with the Complainant’s complaints concerning the Respondent’s attitude towards her hospital appointments, the witness accepted that the pattern of the Complainant’s absences did cause difficulty between Ms McCrann and the Complainant. Nevertheless the Complainant was facilitated in attending all of the appointments that she needed to attend. Mr Fleming told the Court that he was very hurt by the assertion that the Complainant was told that the time attending at the hospital would have to come out of her holidays. He said that the Complainant was paid in respect of all of the time spent attending hospital. The witness told the Court that the Company did not have a sick-pay arrangement and it was normal policy that when staff were absent through illness they were offered the opportunity to have the absence treated as holidays rather than suffering a loss of pay.

Mr Fleming agreed that in or about May 2007 he held a meeting with the Complainant and Ms McCrann to discuss the Complainant’s grievances concerning the hospital visits. He told the Court that he considered Complainant was being unreasonable in not trying to arrange these visits around the requirements of the business. He felt that there was an onus on an employee in the circumstances of the Complainant to help a small business in minimising disruption caused by attending such appointments.

The Complainant

Evidence of the Complainant

The Complainant told the Court that she commenced employment with the Respondent in October 2006 as a bookkeeper and as personal assistant to Mr Fleming and Ms McCrann

The Complainant recalled meeting with Ms McCrann on 10th April 2007 and informing her that she was 11 weeks pregnant. She informed Ms McCrann that she would require time off to attend hospital appointments. On or about 24th April 2007 Ms McCrann asked the Complainant how she wanted to be paid for these absences. Ms McCrann told her that if she wanted to be paid the time would have to be taken as holidays. The Complainant told Ms McCrann that she was entitled to be paid for these visits. Ms McCrann then told her to print off the relevant information on pregnancy related entitlements from the Citizens Information Centre’s web-site. She remarked to Ms McCrann that she should be aware of her obligations as an employer but she nevertheless printed off the information and gave it to Ms McCrann. `Ms McCrann told her that she would have to talk to Mr Fleming about the hospital visits

In the course of her enquiries the Complainant became aware that she was obliged to give her employer two weeks’ notice in writing of anti-natal appointments. She sent an e-mail to Ms McCrann providing details of her next hospital appointment. According to the Complainant, Ms McCrann took issue with her for communicating in that way.

The Court was told that in or about April 2007 issues again arose around the Complainant’s hospital appointments. Ms McCrann told the Complainant that she would have to arrange appointments around the Company’s work requirements. The Complainant told Ms McCrann that she was attending the hospital as a semi-private patient and that she would have to take the appointments that she was offered. Ms McCrann suggested that she could contact the hospital to see if more suitable times could be arranged. The Complainant said that she explained to Ms McCrann that this would be pointless as there was no scope for flexibility having regard to her status as a semi-private patient.

The Complainant told the Court that she suffered from morning sickness from early in her pregnancy. She recalled that on one occasion she had come to work but was ill during the course of the day. She informed Ms McCrann that she would have to go home. According to the Complainant Ms McCrann became very annoyed and told her that morning sickness was unacceptable as an excuse for not being at work. She said that she then visited her GP who placed her on certified sick leave for one week.

The Complainant said that she did attend all of her hospital appointments and confirmed that she was paid in respect of the absences concerned. She did not accept that the issues around these absences had been satisfactorily resolved. According to the Complainant, on each occasion on which she informed the Respondent of an impending appointment Ms McCrann’s demeanour was one of annoyance. She also told the Court that at a meeting with Mr Fleming, held on 24^thMay 2007, she was again told that she should arrange her hospital appointments around the needs of the business.

The Complainant told the Court that in the initial stages of her employment the relationship between her and her managers was excellent. She recalled that when she moved house the Respondent provided her with the use of a trailer and storage facilities. She said that she got on well with colleagues in the office although she was advised by Ms McCrann that she should not be too familiar with colleagues in view of the sensitive nature of her work in so far as it involved the payroll. She helped out in the caf� business and in other areas of the Respondent’s business outside of her main duties. According to the Complainant, the relationship went downhill after the issues arose concerning her hospital visits.

In relation to staff changes, the Complainant recalled that Ms G came to work with the Respondent in or about July 2007 as warehouse manager. The Complainant was asked to show Ms G what she did despite having previously been told by Ms McCrann that her work was of a confidential nature. Around that time the Complainant formed the view that she was effectively being asked to train Ms G to do her job. It was the Complainant’s evidence that as well as her normal duties she had taken over the major part of the job previously undertaken by Ms F, the previous warehouse manager, apart from overseeing work undertaken in the yard of the premises.

In dealing with the events of 7^thSeptember 2007, the Complainant recalled that she was going on holidays at the end of that day and that she had been extremely busy in the preceding period. She was due to finish work at 5.30 and her husband had called to the premises to drive her home. At 5.20pm she received a call to attend a meeting with Mr Fleming in his office. She had no prior indication of what the meeting was about. She was given the document referred to by Mr Fleming in his evidence and told that she was being dismissed for reasons of redundancy. She was told that Ms McCrann was to take over her role within the employment. The Complainant told the Court that she was devastated and found it difficult to take in what was happening. She asked if her husband, who was waiting outside in their car, could attend the meeting. It was agreed that he could attend and she went outside and asked him to join them. She said that Mr Fleming told her that she was to finish on that day and that she would be paid up to the end of October when she was due to commence maternity leave. She had no prior warning that redundancy was being considered. There had been no fall-off in the work in which she was engaged and in fact she was busier than ever in the previous number of weeks.

The Complainant gave it as her opinion that she could have undertaken the job that Mr E was employed to do. This was effectively the role previously undertaken by Ms F, the major part of which she was already doing. It was put to the Complainant that the Respondent’s case was that this role involved driving a forklift truck and lifting heavy boxes. She said that she had never seen Ms F driving a forklift truck although she understood that she may have been required to lift boxes but this would have rarely arisen.

The Complainant went on to detail to the Court the nature and effect of the pregnancy related disability which she developed in mid-2007. In or about July of that year she was required to wear a special belt for support. Both Mr Fleming and Ms McCrann were aware of her disability and its affects. She was in considerable pain at that time but she got on with her work. Contrary to Mr Fleming’s evidence, the Complainant said that she was asked to use the stairs five or six times a day. She was never asked to undergo a risk assessment at that or any other time.

In dealing with the renovations at the office the Complainant said that while she was on leave the premises had been flooded, she thought from the overflow of a stream at the back of the premises. The carpets were destroyed but still on the floor. There was also a smell of sewerage in the offices. She could not remain in her normal place of work and went to sit in the kitchen. Ms McCrann came in a said that she needed to get back to her desk. The remedial work did not commence until approximately two weeks after the damage was caused. It was then decided to take down a wall in the office. The Complainant recalled that the office area was covered in dust and there was a very strong and unpleasant odour throughout her work area. The Complainant asked Ms McCrann if she could move but was told that she was being ridiculous. The Complainant raised the matter with Mr Fleming who said that he would get extractors and keep the windows open. She felt nauseous and uncomfortable in consequence of the environment in which she was required to work.

In relation to the July appraisal and the bonus issue, the Complainant said that when she accepted employment with the Respondent she was offered a salary of €28,000 per year. Her previous employment had been as an assistant manager of a restaurant where her salary was €30,000 per annum and she was somewhat unhappy with the amount offered. She was told that her salary would be reviewed after three months. Some two months after she commenced employment she was told that the Respondent was very happy with her performance and her salary was increased to €30,000. She was assured by Ms McCrann that she would be included in the July appraisal. The Complainant went on holidays in July. On her return she was asked by colleagues if she had received a holiday bonus and if she had been included in the July appraisal. She raised the matter with Ms McCrann whose response was that she did not like her attitude. She then contacted the Equality Authority by phone and obtained advice. She did not take a note of the name of the person to whom she spoke. On or about 13^thAugust 2007, as a result of the advice that she received, she sent an e-mail to the Respondent on the matter. Mr Fleming called her up to his office and expressed his annoyance at her for having raised the matter with the Equality Authority. Mr Fleming told her that the bonus was not paid because she had less than one year’s service. The Complainant told the Court that she had never previously heard that a full year’s service was a condition for payment of the bonus. She said that she was aware that the bonus varied in amount and she thought that this was related to service. She gave an example of one employee who, to her knowledge, had received a bonus of €300. Having raised the matter Mr Fleming then gave the Complainant a cheque which the Complainant thought was for around €130.

In reply to a question from the Court the Complainant said that the cheque was drawn on the Respondent’s account. It was pointed out to the Complainant that in his evidence Mr Fleming had said that bonuses were paid in cash and from his own resources. The Complainant said that she had a clear recollection of the payment being by way of a Company cheque. The Complainant also told the Court that in the course of her work she had seen at least some bonus payments being processed through the payroll.

On the following day the Complainant was approached by named colleagues who were angry and remonstrated with her for having had the bonus payments taken from them. As a result of what they said to her the Complainant became aware that Mr Fleming had immediately gone to other employees and informed them that the bonus was being withdrawn. As a result of what had been conveyed to them by Mr Fleming her colleagues were aware that the bonus was being withdrawn because she had contacted the Equality Authority in the matter. The Complainant was reminded that in his evidence Mr Fleming had told the Court that it was some weeks after her meeting with him that he had spoken to other employees on this matter. The Complainant said that she was sure that it was on the following day that she had the encounter with her colleagues.

Issues arising

The issues arising for decision in this case are, firstly, whether the Complainant was dismissed solely on grounds of redundancy, as contended for by the Respondent, or whether the dismissal was tainted by discrimination on gender grounds by reason of the Complainant’s pregnancy; secondly, whether the Complainant was discriminated against on gender grounds by reason of pregnancy in relation to her conditions of employment in the attitude adopted by the Respondent towards her anti-natal hospital appointments and in the failure of the Respondent to attend to her application for maternity benefit in a timely manner and in failing to provide her with a safe place of work having regard to her pregnancy related disability; thirdly whether she was victimised by the Respondent for having consulted the Equality Authority in relation to the bonus payment. While there are significant questions of law arising in the case these are essentially questions of fact and degree to be determined on the evidence. The Court has carefully evaluated all of the testimony proffered in the case and had taken account of the demeanour of the witnesses in giving their evidence. The Court has also taken account of the many documents put in evidence.

The law applicable

Protection of Women during Pregnancy

In a line of authorities starting with the decision in C-177/88,Dekker v Stichting Vormingcentrum voor Junge Volwassenen[1990] ECR 1-3841 the Court of Justice of the European Union (formally the ECJ) has made it clear that since pregnancy is a uniquely female condition any adverse treatment of a woman on grounds of pregnancy is direct discrimination on ground of her sex. Thus, the law of the European Union recognises the reality that to treat a woman less favourably because she is pregnant is to discriminate against her because she is a woman. That can never be justified. Issues such as disruption caused to an employer’s business or costs associated with accommodating a pregnant woman in employment are, as a matter of Union law, wholly irrelevant.

Since the decision inDekkerthe protection afforded to pregnant women in employment has been strengthened considerably in the case law of the CJEU and in the legislative provisions of the European Union. Equality on grounds of gender is now expressly guaranteed by Article 23 of the Charter of Fundamental Rights of the European Union. Article 33.2 of that Charter also incorporates the prohibition of dismissal on grounds of pregnancy established in jurisprudence of the CJEU. It provides: -

• To reconcile family and professional life, everyone shall have the right to protection from dismissal for a reason connected with maternity and the right to paid maternity leave and to parental leave following the birth or adoption of a child.

• In order to guarantee workers, within the meaning of Article 2, the exercise of their health and safety protection rights as recognised under this Article, it shall be provided that:

• 1.Member States shall take the necessary measures to prohibit the dismissal of workers, within the meaning of Article 2, during the period from the beginning of their pregnancy to the end of the maternity leave referred to in Article 8 (1), save in exceptional cases not connected with their condition which are permitted under national legislation and/or practice and, where applicable, provided that the competent authority has given its consent;

• 2.If a worker, within the meaning of Article 2, is dismissed during the period referred to in point 1, the employer must cite duly substantiated grounds for her dismissal in writing;3.Member States shall take the necessary measures to protect workers, within the meaning of Article 2, from consequences of dismissal which is unlawful by virtue of point 1.

• “Whereas the risk of dismissal for reasons associated with their condition may have harmful effects on the physical and mental state of pregnant workers, workers who have recently given birth or who are breastfeeding; provision should be made for such dismissal to be prohibited”

• “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 pregnant 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 during the period from the beginning of pregnancy to the end of maternity leave”

• “During that period, Article 10 of Directive 92/85 does not provide for any exception to, or derogation from, the prohibition on dismissing pregnant workers, save in exceptional cases not connected with their condition, provided that the employer gives substantiated grounds for the dismissal in writing”

• BeforeDirective 92/85came into force, the Court had already held that, under the principle of non-discrimination and, particularly,Articles 2(1)and5(1) of Directive 76/207, protection against dismissal should be granted to women not only during maternity leave, but also throughout the period of the pregnancy. According to the Court, a dismissal occurring during those periods affects only women and therefore constitutes direct discrimination on the grounds of sex (see, to that effect, Case C-179/88 Handels- og Kontorfunktion�rernes Forbund [1990] ECR I-3979, paragraph 15; Case C-394/96 Brown [1998] ECR I-4185, paragraphs 24 to 27; and McKenna , paragraph 47).

• 45However, the objective is to arrive at real equality of opportunity and cannot therefore be attained in the absence of measures appropriate to restore such equality when it has not been observed. Those measures must guarantee real and effective judicial protection and have a real deterrent effect on the employer (Marshall , paragraph 24).
  
  46Such requirements necessarily entail that the particular circumstances of each breach of the principle of equal treatment should be taken into account. Where financial compensation is the measure adopted in order to achieve the objective previously indicated, it must be adequate, in that it must enable the loss and damage actually sustained as a result of the discriminatory dismissal to be made good in full in accordance with the applicable national rules ( Marshall , paragraphs 25 and 26).
  
  47It is necessary to recall that, in accordance withArticle 12 of Directive 92/85, Member States are also bound to take the necessary measures to enable all workers who consider themselves wronged by failure to comply with the obligations arising from that directive, including those arising from its Article 10, to pursue their claims by judicial process.Article 10(3) of Directive 92/85specifically states that Member States shall take the necessary measures to protect pregnant workers or those who have recently given birth or are breastfeeding from the consequences of dismissal which is unlawful by virtue of paragraph 1 of that provision.
  

• 49While recognising that the Member States are not bound, underArticle 6 of Directive 76/207orArticle 12 of Directive 92/85, to adopt a specific measure, nevertheless the fact remains, as is clear from paragraph 45 of the present judgment, that the measure chosen must be such as to ensure effective and efficient legal protection, must have a genuine dissuasive effect with regard to the employer and must be commensurate with the injury suffered.

• “With regard to the second part of the second question relating to the award of interest, suffice it to say that full compensation for the loss and damage sustained as a result of discriminatory dismissal cannot leave out of account factors, such as the effluxion of time, which may in fact reduce its value. The award of interest, in accordance with the applicable national rules, must therefore be regarded as an essential component of compensation for the purposes of restoring real equality of treatment.”

Burden of Proof

Section 85A of the Act now provides for the allocation of the probative burden as between the Complainant and the Respondent in cases coming with its ambit. This section provides, in effect, that the Complainant bears the initial burden of proving facts from which discrimination may be inferred. If those facts are established, and if they are regarded by the Court as of sufficient significance to raise an inference of discrimination, the onus passes to the Respondent to show that the principle of equal treatment was not infringed in relation to the Complainant.

Where the probative burden shifts the Respondent must show a complete dissonance between the discriminatory ground relied upon and the impugned conduct or omission. Thus, inWong v Igen Limited[2005] IRLR 258 (a decision of the Court of Appeal for England and Wales), Peter Gibson LJ pointed out that where the Respondent fails to show that the discriminatory ground was anything other than a trivial influence in the impugned decision the complaint will be made out.

As was pointed out by this Court in Determination EDA0821,Kieran McCarthy v Cork City Council, at the initial stage the complainant is merely seeking to establish a prima facie case. Hence, it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the facts proved. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts.

For reasons already mentioned in this Determination, the special protection afforded to pregnant woman against dismissal in European law requires that where a pregnant woman is dismissed the employer must bear the burden of proving that the dismissal was grounded on exceptional circumstances unrelated to pregnancy or maternity. Hence, in every case in which pregnancy related dismissal is in issue, the factual combination of the dismissal and the woman’s pregnancy must, in and of itself, place the onus of proving the absence of discrimination firmly on the Respondent.

However, for reasons that follow, there is a significantly broader factual matrix in the instant case from which the existence of discrimination on grounds of pregnancy can be inferred.

The facts

The Court heard evidence from two witnesses on behalf of the Respondent and from the Complainant herself. Overall the Court found the evidence tendered by the witnesses for the Respondent unsatisfactory and lacking in candour in many material respects. By contrast the Court found that the Complainant gave honest evidence to the best of her recollection. Where there is conflict in that evidence tendered on behalf of the Respondent and that tendered by the Complainant, the Court prefers the evidence tendered by the Complainant.

It is clear from the evidence that in the initial stages of her employment the working relationship between the Complainant and her employers was positive and cooperative. After the Complainant informed the Respondent of her pregnancy that relationship deteriorated to the point where the dominant disposition of the Respondent towards the Complainant descended into one of enmity.
It is clear from the evidence that the reason for this deterioration stemmed from the Complainant’s insistence on exercising her legal right to take time off work to attend anti-natal hospital appointments and her insistence on being paid for these absences. In that regard the Court accepts as a fact that both Ms McCrann and Mr Fleming believed that the Complainant was acting unreasonably in not arranging her hospital appointments around the convenience of the Respondent’s business and that her instance on being paid for the time in question, rather than taking it as holidays, placed an undue burden on the Respondent. While the Respondent had no choice but to allow the Complainant to attend these appointments during normal working hours the Court accepts the Complainant’s evidence that throughout the period in question she was made to feel uncomfortable at so doing and that her manager displayed her displeasure on each occasion on which she was informed of an impending visit.

The Court is also satisfied that the Respondent displayed a total lack of consideration for the Complainant physical condition during what it knew was a difficult pregnancy. It failed to undertake any meaningful risk assessment or to discuss with her adjustments that could be made in the duties that she was required to undertaken or in the physical environment in which she was required to work.

The Court also accepts as a fact that the Complainant was promised that her salary would be reviewed in June 2007 and that the Respondent resiled from that commitment. The Court believes, as a matter of probability, that this was because of various issues that were inexorably connected with the Complainant’s pregnancy. The Court also accepts that the Respondent failed to attend to the completion of the Complainant’s application for maternity benefit in a timely manner. This caused the Complainant undue anxiety and distress. The relevant form merely required the Respondent to answer six basic questions and the Court finds it impossible to accept Ms McCrann’s evidence that she was too busy to attend to the form, particularly in light of her claims that her work load had diminished around that period to the point that she was able to take over the Complainant’s role.

In all of these issues the Court is satisfied that the Complainant was discriminated against in respect to her conditions of employment.

In relation to the events surrounding the bonus payments, it is clear that the Complainant believed that she was being denied this payment for reasons related to her pregnancy. She sought advice from the Equality Authority, as was her right. She was forthright in informing her employer of the import of the advice that she had received and of the source of that advice. In his evidence to the Court Mr Fleming did not seek to disguise his annoyance at what the Complainant had done. He then withdrew the benefit of this bonus from all other employees and the Court has no doubt that the manner in which he conveyed that decision to other staff members pointed to the Complainant as being responsible for bringing it about. Inevitably, those from whom the benefit was withdrawn vented their anger at the Complainant and caused her further distress. The Court cannot accept that Mr Fleming did not appreciate or intend what were the natural and probable consequences of his actions.

The Court is satisfied that the actions of Mr Fleming in this regard constituted an act of victimisation directed against the Complainant for seeking to assert a right under the Act.

The most serious issue arising in this case relates to the decision to dismiss the Complainant and in the manner of its implementation. As previously adverted to in this determination, the law recognises that during pregnancy women are physically and emotionally vulnerable and the effects of dismissal can have a particularly deleterious effect on their physical and mental health. It is for that reason that the law provides special protection to pregnant women against dismissal except in exceptional circumstances. It is for the Respondent to prove, on the balance of probabilities, that such exceptional circumstances existed in this case. In the Court view it has wholly failed to discharge that burden.

At the time of her dismissal the Complainant was due to commence maternity leave and would have been absent from her employment for a period of a least six months during which she would not have been paid. At the time of her dismissal she was paid her full salary up to the time that her maternity leave was due to commence. There could be no justification for dismissing the Complainant at that time regardless of what circumstances may have existed. However, on the evidence, the Court is not convinced that a genuine situation of redundancy existed at the material time. While there was some restructuring in the staffing arrangements, they did not, in fact, result in the Respondent having fewer employees. At the time of the Complainant’s dismissal the Respondent was in the process of recruiting a new employee and no consideration whatsoever was given to assigning the role to be undertaken by that person to either Ms McCrann or to the Complainant. On this point the Court accepts the Complainant’s evidence that she had previously undertaken a substantial part of the job to which the new employee was assigned.

The manner in which the dismissal was implemented is a serious aggregating factor in this case. The decision to dismiss the Complainant must have been in the contemplation of the Respondent for some time yet the Complainant was given no prior indication of what was to occur. She was informed of her dismissal some ten minutes before she was due to finish work and go on annual leave. She was merely informed of the decision and given no opportunity to make representations on her own behalf. In the Court’s view no reasonable employer, acting bona fide, would have behaved in such a manner.

Having regard to all the evidence Court cannot accept that the decision to dismiss was taken solely on grounds of redundancy. In these circumstances the Court must conclude that the Respondent was motivated by consideration of the Complainant’s pregnancy or by matters related thereto.

Conclusion

For all of the reasons set out herein the Court is satisfied that Complainant was discriminated against on grounds of her gender, that she was victimised and that she was subjected to a discriminatory dismissal. Accordingly, the Court affirms the decision of the Equality Tribunal and the Respondent’s appeal is disallowed.

Redress

In relation to redress, the Court affirms the award of compensation in the amount of €40,000 for the effects of the discrimination suffered by the Complainant. The Court also affirms the award of €10,000 for the victimisation suffered by the Complainant.

The Court also affirms the decision of the Equality Officer directing the Respondent to pay interest at the Court rate on the compensatory award for the effects of the discrimination suffered (€40,000) in respect of the period beginning on 24^thJanuary 2008, being the date on which the within complaint was presented to the Equality Tribunal, and ending on the date of payment.

For the avoidance of doubt, no part of the awards made is in respect of remuneration.

The Court further affirms the ancillary order made by the Equality Officer at paragraph 6.8 of his decision.



Signed on behalf of the Labour Court



Kevin Duffy
16th March 2012______________________
SCChairman



NOTE

Enquiries concerning this Determination should be addressed to Sharon Cahill, Court Secretary.