The Equality Tribunal
Employment Equality Acts 2000 to 2011
DECISION NO: DEC-E2012-062
Ann Marie Cuddihy
(Represented by Coughlan White O'Toole Solicitors)
V
DSV Solutions Limited
(Represented by IBEC)
File No. EE/2009/821
Date of Issue: 29 May 2012
File reference: EE/2009/821 - DEC-E2012-062
Keywords:
Employment Equality Acts - Discriminatory treatment - Discriminatory Dismissal - Gender - Prima Facie Case
1. Dispute and delegation
1.1 This dispute concerns a complaint by Ms. Ann Marie Cuddihy (hereafter "the complainant") that she was subjected to discriminatory treatment and discriminatory dismissal by DSV Solutions Limited (hereafter "the respondent") on the ground of her gender. The complainant maintains that she was discriminated in the manner in which she was treated in seeking time off for ante-natal appointments. She was also discriminatorily dismissed on 24 October 2010.
1.2 The complainant referred a claim of discrimination to the Director of the Equality Tribunal under the Employment Equality Acts on 11 November 2009. On 10 February 2012, in accordance with his powers under section 75 of the Acts, the Director then delegated the case to Tara Coogan- an Equality Officer - for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts on which date my investigation commenced. As required by Section 79(1) and as part of my investigation, I proceeded to hearing on 17 May 2012.
2. Preliminary matters
2.1. The respondent submitted that this Tribunal did not have jurisdiction to investigate the complainant's case for discriminatory dismissal. The respondent relied on section 101(4c) of the above Acts and submitted that the Employment Appeals Tribunal had already completed a hearing into the matter and issued a determination of the matter (UD2507/2009 MN2350/2009).
2.2. The complainant stated the matter was currently under appeal and it was therefore incorrect to state that the matter was 'done and dusted'.
2.3. I find that section 101(4a) uses clear language. Referring to dismissals, it clearly limits an employee's right to seek redress from more than one forum. In relation to Employment Appeals Tribunal the language of these Acts clearly states that as soon as that body has begun a hearing into the matter of the dismissal, this Tribunal has no jurisdiction to consider redress in matters relating to the same facts. It is clear that in circumstances where I am satisfied that a case relating to the same facts has been fully heard in the Employment Appeals Tribunal and a determination in the matter has issued, I have no jurisdiction to go behind such a decision. It is not a matter for this Tribunal if either party has exercised their right to an appeal.
2.4. This decision will therefore only examine the complainant's case relating to the alleged discriminatory treatment.
3. Case for the complainant
3.1. The complainant was initially employed for an employment agency and was placed with the respondent. She began work in August 2008. After eight months, the respondent offered the complainant an opportunity to work on a fixed term contract directly with them.
3.2. The complainant contends that she has been discriminated on the grounds of gender by the manner in which she was treated by the respondent when requesting to attend ante-natal appointments comparable to other pregnant colleagues. The complainant submitted that for the first appointment she took half day annual leave in addition to the half day that she had been granted. However, when she sought time off for her second appointment she was told that she ought to return to the office whenever she was done at the hospital. She had enquired why she was not entitled to the same treatment as she had during her previous appointment but was told that she had been granted such treatment as a goodwill gesture. The complainant was also told that she ought to give the respondent two weeks notice of such appointments and that she ought to request more suitable appointment times. The complainant's requested for unpaid leave was denied.
3.3. The complainant was actually out sick during her second ante-natal appointment. She did not therefore return to the workplace after her appointment.
3.4. The complainant relied on Dekker (Council Directive 2006/54/EC (2006 OJL204/23)) that held that pregnancy discrimination is unlawful direct discrimination on the ground of gender. Article 2(2)(c) of the Recast Equal Treatment Directive states that discrimination includes any less favourable treatment of a woman related to pregnancy or maternity leave within the meaning of the Pregnancy Directive.
3.5. It was submitted that the entire period of pregnancy constitutes a special protected period as per McGarvey v. Intrum Justitia (EDA095).
4. Case for the respondent
4.1. The respondent denied that it discriminated against the complainant on the gender ground. It was submitted that when the complainant sought time off for her second appointment she had no annual leave left to make up for the full day.
4.2. The respondent had emailed the complainant the respondent's maternity leave policy on 14 September 2009 in order to provide information regarding time off to attend ante-natal appointments. Furthermore, the respondent explained in the body of the email the manner in which time off could be managed.
4.3. The complainant was advised that she was entitled to paid time off for such an appointment and that therefore she was expected to report back to the office after her appointment.
4.4. The respondent submitted that it is well-established practice of the Equality Tribunal and the Labour Court to require a complainant to present, in the first instance, facts from which it can be inferred that she was treated less favourably than another person is, has been or would be treated, on the basis of discriminatory ground cited. The Labour Court has elaborated on this further in Margetts v Graham Anthony & Company Limited, EDA038 whereby the evidential burden that must be discharged by the complainant before prima facie case of discrimination can be said to have been established in circumstances where:
"The mere fact that the complainant falls within one of the discriminatory grounds laid down under the Act is not sufficient is itself to establish a claim of discrimination. The complainant must adduce further facts from which it can be inferred on the balance of probabilities that an act of discrimination has occurred."
4.5. The complainant's case is that she was treated less favourably than other pregnant employees were treated by the respondent. Such an assertion does not fall within the scope of section 6 of the above Acts. Notwithstanding it is the position of the respondent that the complainant was treated in no less favourable manner in the facilitation of the requests for time off to attend ante-natal appointments. In the previous 4 years the respondent has facilitated 27 employees who have required time off to attend ante-natal care during the course of their pregnancy. All employees have been required to adhere to procedures for requesting time off and the notification procedures required. It was submitted that the respondent maternity leave policy adheres to the provisions of regulation three and four of S.I. 18/1995 Maternity Protection (Time off to attend antenatal and postnatal care) Regulations.
5. Conclusion of the equality officer
5.1. In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to Section 85A of the Employment Equality Acts 1998 to 2008. 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. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. The Labour Court elaborated on the interpretation of section 85A in Melbury v. Valpeters EDA0917 where it stated that section 85A: "places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule".
5.2. It was submitted by the respondent that the complainant was unable to establish a prima facie case in accordance with section 6(2a) of the Acts. Her complaint refers to pregnancy, a condition specific to women. Such an assertion does not fall within the scope of section 6 of the Acts. In order to fall within the legislative definition the complainant would have to demonstrate that she was treated less favourably than an employee not covered under the equality grounds to which she relates. A prima facie case cannot be established in circumstances where the complainant contended that she was treated less favourably than another pregnant employee.
5.3. It ought to be clear that pregnancy and maternity leave are both periods during which such women enjoy specific protection in law. Therefore, any evidence of less favourable treatment experienced by a pregnant woman can and is likely to be construed as gender related discrimination by this Tribunal. This is, if such less favourable treatment can be shown to form a nexus with the protected ground. Therefore the legitimate comparator can be any person. In order for a prima facie case to arise under these Acts I must find evidence of less favourable treatment and such treatment must be significantly or entirely linked with pregnancy.
5.4. I note that the respondent has a maternity policy and that this was forwarded to the complainant. It is clear that the complainant was not denied the right to attend her ante-natal appointments and it is equally clear that the respondent had showed flexibility to the complainant when she, through no fault of her own, needed to take time off at short notice to attend her ante-natal appointment. I note that, in the circumstances of this case, the complaint therefore related to the fact that the complainant - for her second appointment - was advised to schedule her appointments early or late so that a half day leave would suffice. The complainant compared this situation with the previous appointment for which she was given a half day off and where she herself had elected to take a half day off.
5.5. The complainant took exception with an email that she had received from human resources. This email makes it clear that the respondent wishes to minimise disruption to its business whilst ensuring that pregnant women are able to attend their ante-natal appointments without loss of pay. I see nothing problematic with this. While women are entitled to attend ante-natal appointments, it is perfectly reasonable that where possible such facilitation does not cause more disruption to the workplace than necessary. The complainant stated that she wanted to work that morning and then head off to her appointment for 13.10. Her position was that it was unfair that she would have to return to the office after such appointment. I note that there was some confusion in relation to this fact as the respondent appears to have understood that the complainant wanted to have the whole day off. The complainant stated that she intended to attend in the morning and then go to her appointment. The unfairness, in the complainant's view, was in the request that she return to the office after her appointment. She stated that this would put her under pressure in case the appointment dragged on. I note that the above debate is somewhat artificial as the complainant was on certified sick leave on the actual day of her appointment. There is therefore no evidence to support a case that the complainant would have suffered detriment if she had not been able to return from her midday appointment in time. It is clear that the complainant contends that she ought to have been given a full day to attend an appointment. Such a wish is not a matter for this Tribunal and certainly not a legal entitlement.
5.6. I note that it was also argued that the respondent did not clarify to the complainant that she would not lose pay or that she would have to return to the office after her appointment regardless of circumstances. I do not accept this in circumstances where it is clear that the respondent had advised the complainant that it would be granting time off for an employee to attend ante-natal appointments but wished to do so in a manner that minimised disruption to the business. It is clear that the complainant had been provided with the maternity policy which is clear that ante-natal appointments are paid time out. The fact that the complainant had availed of her annual leave for her first appointment (in addition to paid time off) does not mean that she was less favourably treated in relation to her request for the second appointment when she had no annual leave left. I find that the respondent did not as a matter of routine grant entire days off for ante-natal appointments to anybody and the complainant has not provided any evidence to support her assertion that other pregnant employees were more favourably treated. I have found no evidence in the circumstances of this case that the complainant was less favourably treated because of her pregnancy.
5.7. This Tribunal has no jurisdiction to examine whether the respondent has fully adhered with the provisions of the Maternity Protection Acts.
6. Decision
6.1. Having investigated the above complaint, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts:
6.2. I find that the complainant has not established a prima facie case of discriminatory treatment on the gender ground.
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Tara Coogan
Equality Officer
29 May 2012