DEC-E2012-155- Full Case Report

DECISION NO: DEC-E2012 -155

PARTIES

An Employee
(Represented by Eilis Barry BL, instructed by Cody and Associates Solicitors)

- V -

A Training Company

File references: EE/2009/670
Date of issue: 20/11/2012

Keywords
Employment Equality Acts 1998-2011 - Discriminatory Treatment - Discriminatory Dismissal- Harassment- Victimisation - Gender - Family Status

1. Dispute

1.1. This dispute concerns a claim by An Employee (hereafter "the complainant") that she was subjected to discriminatory treatment, harassment, victimisation and discriminatory dismissal on the grounds of gender and family status by A Training Company contrary to the Employment Equality Acts. The Training Company is the actual respondent in this case; however throughout this decision, the Managing Director is referred to as the respondent for ease of reference, as she and the complainant were the only employees at the material time.

2. Background

2.1. The complainant referred her claim of discrimination to the Director of the Equality Tribunal on 9 September 2009. In accordance with his powers under section 75 of the Acts, the Director then delegated these cases to me, Elaine Cassidy - 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 2 February 2012, on which date my investigation commenced. As required by Section 79(1) and as part of my investigation, an oral hearing was held on 14th June and 23rd July and both parties attended. The respondent expressed concern about her lack of legal representation at the hearing and her rights in this regard were fully explained to her. She also expressed concern that the complainant did not give her advance notice of all the evidence and witnesses. In response to these two concerns, and in line with the usual practice of the Tribunal, she was afforded additional time to make submissions, both oral and written, and adjournments were given during the course of the hearing to allow her more time to consider the evidence. Correspondence was exchanged until 9th August 2012.

3. Case for the complainant

3.1 The complainant was a mother of two children at the time of the incidents which are the subject of this complaint. The complainant had worked for the respondent in a full-time role for 10 years, primarily in the area of training. The complainant submitted that she loved her job, worked to a high standard, brought in profits for the company and got on very well with the respondent. In recognition of this, the respondent made her a Company Director and Shareholder in 2003. In this role, she was responsible for managing most of the staff. In 2004, there were many redundancies and the business struggled financially; however she took maternity leave and received her top-up payment from the company, without any problem.

3.2 During her second maternity leave in 2007, the complainant was paid a top-up to the full amount of her salary. During the leave period, she visited the respondent socially on several occasions, as her daughter was in a summer camp run by the respondent's husband. On these occasions she and the respondent regularly discussed the challenges of maintaining a work-life balance with children. Following these discussions, the complainant understood she was to return to a part-time role (3 days per week) with less travel and no overnights, from October 2007, after her maternity leave. (She also requested to be paid for 5 days per week, but work for 4 days (in lieu of a pay increase). This request was turned down by the respondent, on the basis that the complainant did not do sufficient travel.) The complainant however found that she was working four days per week by December, and so she asked if an alternative way of working could be considered. (She refuted that she had ever requested a leave of absence.) The respondent had taken the month of January off to work on her thesis and on 4th February, the complainant received an email from the respondent entitled "finishing up". The complainant understood this to mean that she was being forced to leave her job and she described this as a major shock and lost her temper. She did not consider herself to be finishing up her job; she was not at that stage yet. Some emails were exchanged between the parties and they met on 6 February 2008 to discuss the matter.

3.3 The complainant described the meeting as difficult, but finished amicably and she was happy with the outcome. She documented her newly agreed working arrangements the following day. Under the new arrangement, she would be self-employed and do flexible hours at a fixed rate of 35 Euros per hour with her insurance and pension continuing to be paid by the respondent. She could work from home doing "Project Work" most of the time and her travel would be minimal. The complainant worked under this arrangement until October 2008. By this time, the complainant and the respondent were the only two remaining in the company.

3.4 The complainant stated that the arrangement worked to the strengths of both herself and the respondent and it suited her well, in that she got a lot of hours work and she could work in her own time, which she mainly did at night. She stated that this worked very well for her key client, because she would have work prepared and available to them first thing every morning. However in the last couple of months of the arrangement, the respondent had some issues with it. She stated that the respondent had finished her masters degree, was consequently in the office more often, and wanted more control of her and more regular access to her. They had a call regarding the matter in October 2008 and it was agreed that the complainant would return to her earlier status as a regular salaried employee, but on a part-time basis of 3 days per week. She also requested to do minimal travel and training. The complainant stated that she probably earned more working on a self-employed basis, but it suited her to give this up in return for job security. At the end of the call, she advised the respondent that she was expecting her third child and the respondent congratulated her. She agreed with the respondent that she would not seek the top-up payments which had been made to her for the previous two pregnancies, on the basis that the company was not doing well financially. The complainant documented the details of this change to her contractual terms and conditions and it was approved by the respondent. This arrangement worked very well for the complainant for the next few months, as she mainly worked on documentation and did very little training.

3.5 On 12 February 2009, the complainant's baby was tragically delivered still born. The respondent visited her soon afterwards and they had an amicable discussion over coffee. The complainant said that the respondent was very nice and attentive to her. The respondent had brought her social welfare form for sign-off by her GP, as a result of the emergency start to her maternity leave. The complainant submitted that they talked extensively about work and that she asked to maintain an interest in the business during her maternity leave. She was aware that 2009 was looking like a bad year for them and there was very little work. The respondent told her about the 2 contracts she was hoping to get with a national training provider. They agreed that the complainant would finish some class homework which she had been in the middle of doing before maternity leave and the respondent took away the rest of the work, which had not been started. The complainant denied the respondent's assertion that her mother had asked the respondent to keep her busy with work, to distract her from the loss of her baby.

3.6 Over the next month, she also did some other pieces of work and by agreement she was paid for the whole month of February. In March, she was paid for 12 days work. She advised the respondent that she had been overpaid by two days and said she would do a specific piece of work to pay it back. The complainant submitted that the relationship between them was cordial during this time; however she was aware that the respondent was stressed about the lack of business and under a lot of pressure. She was very anxious to be distracted by work, as she felt it would help her deal with the terrible loss she had suffered.

3.7 At the beginning of April, the complainant received the good news from her doctor that her stillborn baby had not been diagnosed with Edward's Syndrome. Previously she had feared that the baby had suffered a genetic condition, which could also impact any future children she might have. The complainant had done considerable research on the matter between February and April and was therefore very relieved to hear this news. She called the respondent to tell her the good news and that she definitely wanted to have another baby.

3.8 Following this conversation, the complainant felt that things cooled between herself and the respondent. In order to help with the poor financial situation, the complainant had got some work doing mystery shopping for one of their retail clients. She wanted to do it herself, but the respondent said that she would take care of it. The complainant told her not to worry about the financial side of things, because she just wanted to do it to keep busy and take her mind off the loss of her baby. The complainant felt that there was less communication between them during April. On 21 April, the complainant called the respondent to see how things were going. The respondent was annoyed with her because there had been an error on a piece of work done for their client. The complainant submitted that she felt bad about this, because she knew the respondent was under a lot of pressure, so she apologised about it. The complainant submitted that she was very anxious about the future of the company and she wanted to get involved and help out. She felt isolated and shut out of what was going on with the business. She was even thinking of asking to finish maternity leave and come back to work to help out and also to distract herself. However following this call, she felt it was clear that her help was not wanted and she planned to just continue her maternity leave. She said that the respondent told her that business was going badly and that she felt hassled by her phone call. As a result she wrote an appeasing email to the respondent immediately after the phone call. She submitted that she met a client briefly on 23 April and called the respondent to update her. She felt that the respondent was still annoyed with her and it was a brief conversation.

3.7 On 23 April, the complainant received an email from the respondent which she described as vicious. The email stated that their phone call of 21 April could not be forgotten and there were a number of other elements of the email which the complainant found upsetting and discriminatory. Firstly the respondent said that she had been happy for her on a personal level but not on a business level, when she learned of the complainant's pregnancy the previous October. She said that the previous two years had been all about making the business fit the complainant's personal circumstances and that this would have to stop. She gave her an ultimatum, which the complainant understood as meaning that she would have to return to work full-time, or return to her status as a self-employed contractor. The complainant understood the reference to "sharing the work equally" to mean that she would have to go back to travelling, which she did not want to do. The complainant was also advised not to make a "knee-jerk reaction" to the email. The complainant found this email to be hurtful, untrue and offensive, especially in the context of her having recently lost a baby. She stated that her work was profitable and of a high standard and the suggestion that she was somehow being accommodated by the respondent was unfair.

3.8 The following day the complainant rang the respondent and asked to meet with her. It was agreed they would meet at a restaurant on 28th April. The complainant had also visited her GP around this time, because she had not been able to sleep for some time. The complainant arrived at the restaurant and was surprised and annoyed to find the respondent drinking prosecco with a client, when they were supposed to be meeting to discuss her personal situation. The complainant said that she wanted a 2-day week with less travel, in the capacity of employee rather than self-employed contractor. The complainant submitted that she thought it would be helpful to offer to do just 2 days, while the company was struggling financially. The complainant submitted that the respondent told her that the work had dried up and her job was gone. She said it was up to her (ie: the complainant) to find a solution, because she (the respondent) was sick of trying to fix things. The complainant submitted that the respondent criticised her punctuality with respect to some training previously delivered by her. The complainant submitted that the respondent abruptly got up and left her in the restaurant.

3.9 As a result of this meeting, and the previous email, the complainant consulted a solicitor about the situation and was advised to write to the complainant setting out the situation. Between May and September 2009, a lengthy series of email, letters and phone calls ensued and these are described in Section 5.

3.10 The complainant returned from maternity leave to work on August 24th, following the exchange of letters between the legal representatives for the parties (at Section 5). She was on a 3-day week as before. She stated that she was not happy at all about going back on that date. She described the atmosphere between herself and the respondent on the first day as tense and minimally cordial. The respondent was busy doing some work when she arrived, so she was asked to read the company handbook and the disciplinary and grievance procedure, in advance of their meeting. This first meeting lasted about an hour and the complainant was extremely annoyed about the criticism of her web usage. Afterwards she ate lunch in her car, in contrast to previous times when they always ate together. After lunch she said that things became more cordial and they worked together all afternoon.

3.11 The next day the parties met again in the morning. The complainant submitted that the respondent told her that she was sorry for being so friendly to her the previous day. She said that the respondent had said that she (the complainant) had made her (the respondent) out to be "a monster" by going to a solicitor. The respondent said that "she (the complainant) had her over a barrel". The complainant stated that she felt upset and intimidated, but stayed there and worked the rest of the day. The third day, she worked from home as agreed.

3.12 On the fourth day, the complainant documented the events of the first two days in an email to her solicitor, which is summarised below:
* She stated that she was required to complete an Induction and given time to read the Employee Handbook The complainant felt that the purpose of this was to put her in her place - after 12 years working there, she did not need to be shown the Employee Handbook.
* She was informed she could take a half-hour for lunch allowing her to start at 9.30 (instead of 9am), but if she wanted to start later, she would be deducted pay. She stated this was in contrast to the flexibility she was previously afforded.
* She said that the respondent mentioned that she had another trainer on standby, because she did not know until 19th August whether the complainant was returning to work.
* She was informed that there would be an 8% paycut, as a result of the reduction in professional fees for contractors to State bodies. She was given one month's notice of this change.
* She was advised that due to further cost-cutting, she would have to take responsibility for her own mobile phone bills and make expense claims for business calls. She was upset about this and the respondent said she did not want to make an issue of it. The following day, she raised the matter again and the respondent agreed that the company would pay for her mobile phone and she should deduct personal calls.
* She was criticised by the respondent for the high levels of SPAM in her email account. She acknowledged that this issue had arisen on several occasions in the past also. The respondent stated that the complainant's personal web usage had contributed to the problem, due to cookies being left open on "inappropriate sites". The complainant challenged her on this and the respondent mentioned some weather forecast and general retail websites. The complainant stated that she had always used her laptop for some personal usage, with the full knowledge of the respondent, and this had never been a problem before.
* She wrote that the respondent was considerably more frosty towards her on the second day and criticised her work performance on specific issues before and during maternity leave.
* She stated that the respondent told her that her old laptop was not recoverable and she could not afford a new laptop for her. She stated that the respondent told her that her remote activity on the server had been monitored for the last few months and she would no longer have remote access. The respondent told her that she would have to use the generic office email address, because she could not be trusted. The complainant stated that she believed she was to be supervised more closely in the future and she found this to be intimidating. She stated that the respondent's main objective was to ensure the company survived and she would have to decide by October whether or not to wind up the company.
* She stated that the respondent said she had accessed "adult content", which the complainant emphatically denied. She stated that the respondent refused to give any more detail and told her she would not be investigating it any further.

3.13 After sending this email to her solicitor on the fourth day (Aug 27th), she visited her GP and got an indefinite sick certificate for anxiety and stress. She stated that she had not slept for the first two nights after returning to work. She was 8 weeks pregnant at this stage and she wrote to her solicitor that her GP recommended that she should not go back to work. She sent the sick cert to the respondent, but did not advise her that she was pregnant. She returned some documents which she had been working on.

3.14 On 3rd September her solicitor wrote to advise the respondent that the complainant had been constructively dismissed. (see Section 5 for details of the correspondence). In the oral hearing, the complainant stated that she could not foresee an improvement to her work situation and she could not take sleeping tablets to get over the initial anxiety, due to her pregnancy.

3.15 Witness for the complainant - Manager at a telecommunications company
The witness stated that she was a client of the respondent for a number of years and had primarily worked with the complainant during this time. She stated that the complainant was hard-working, conscientious and was held in very high regard at the telecommunications company. She stated that the complainant became very involved with the client and all of their project work. She gave examples of how the complainant was very reliable and was always available to her, even at very short notice. She said that in the past the respondent had mentioned to her that the complainant might be leaving and she told the respondent that this would be crazy; in her opinion the skills of the respondent and complainant complemented each other so well that the respondent could not do without her.

3.16 Witness for the complainant - former employee of the respondent company
The witness stated that she had worked for the respondent from 2001-2006. She stated that there was good flexibility with respect to holidays and to using her laptop for personal matters. She said that the complainant was not the only person who took sick leave; the witness herself had taken sick leave during this time. Her other comments are excluded on the grounds that they are hearsay and not relevant.

4. Case for the respondent

4.1 The respondent stated that she was the Managing Director of the company and that the complainant had been employed by her since 1997 and promoted in 2001. In 2002 the complainant became a Director and in 2003 she became a Shareholder. She submitted that she and the complainant had worked very well together for a long time and had been friends as well as having a close working relationship. The respondent stated that when the complainant returned from her second maternity leave in Oct 2007, she had brought up the issue of travelling long distances and staying away overnight. The respondent stated that as her own children were older than the complainants', she did not mind doing those jobs, and she felt sympathetic towards the complainant because she knew what it was like to manage work with small children. The respondent stated that the arrangement they made at this time was that the complainant would work Monday-Wednesday on training and Thurs/Friday on projects. By the end of November, she found that the complainant was having difficulty with the hours and they discussed the idea of her taking a leave of absence from February to September 2008, by which time the complainant's son would have started school and she felt it would be easier for her to work. The respondent met with one of the complainant's major clients, a telecommunications company, to explain what was happening. She submitted that the client was shocked and did not think it could work. Therefore the respondent and the complainant drafted an email to the client after this meeting, advising the client that the complainant would finish all the work she was doing for them and that she would be available to work on other projects, if required, during her leave of absence. The respondent submitted that they then worked on a handover plan at the end of December, before she took the month of January off to work on her thesis. On 4th February she wrote an email to the complainant entitled "finishing up", with further details of the transition plan between them. She immediately received an angry response from the complainant, which she did not understand. On 6th February they met in person to discuss and they agreed there had been a misunderstanding between them. They agreed to a new working arrangement (as described by the complainant at 3.3 above). The respondent submitted that she was not happy about this new arrangement, but was obliged to accept it, because they were the only two remaining employees and they had specific work commitments which could not be changed, without causing disruption to clients.

4.2 From February to October 2008, the complainant worked under the new arrangements. The respondent stated that these arrangements worked well for the complainant and the telecommunications company. However they did not work well for the respondent and for other clients. The respondent stated that the complainant worked odd hours, mainly at night and this made it difficult for her to communicate with the complainant and to schedule work or meetings for her. She also stated that she had been criticised by a client as a result of his perception that she was making the complainant work long hours (because the complainant sent her emails mainly at night). She stated that it did not matter to her whether the complainant was an employee or sole trader, but it was her preference that the complainant would work a fixed 3 days per week. As a result they had a discussion in October 2008, which led to a revised working arrangement. This is described by the complainant at Section 3.4. The respondent submitted that this arrangement worked well for her, because she could co-ordinate their work better and that it worked better for the complainant because she went from being a sole trader to an employee near the start of her pregnancy. The respondent stated that the complainant offered not to seek a top-up payment from the company during maternity leave, because of their financial situation, and that she appreciated this offer. She said that during this meeting, the complainant also said that she would return from maternity leave on a self-employed basis. However nothing definite was agreed on this point, as it was a year away. The arrangement was documented in October 2008 continued until February 2009 and worked well for both parties.

4.3 In February 2009, the complainant went on emergency maternity leave following a scan at the hospital. The respondent visited her with presents at the hospital after the loss of her baby. She submitted that she had also lost a baby in similar circumstances and was very aware of what the complainant was going through. She visited her again after the burial and brought groceries for her as she had done after her previous pregnancies. They had lunch together with the complainant's mother and the respondent took away the work the complainant had been working on. It was agreed that the complainant would finish some class homework which she had already started and the respondent offered to pay her for the month of February as a goodwill gesture. The respondent submitted that the complainant's mother spoke to her privately and asked her to let the complainant come back to work. She felt it was bad for her to be sitting at home crying all day. The respondent said that she felt uncomfortable talking without the complainant's knowledge and she did not call her mother back with a response to the request.

4.4 The respondent submitted that during March, the complainant did some work for the company, but this did not suit her, as she needed the work herself, she could not afford to pay her and there were mistakes with the complainant's work. However given the complainant's personal situation, the respondent submitted that she did not want to upset her by raising the issues with her. The complainant then submitted her invoice for 12 days work in March, which shocked the respondent, as she had not been able to take a salary herself since January. She understood that the complainant was just trying to keep busy and was not doing it for the money; however once the respondent became aware of the work, she was obliged to pay her. She arranged for it to be put through payroll; however she was advised by her accountant that she must not allow it to happen again, because the complainant was in receipt of maternity benefit payments from the State. Based on the accountant's advice, the respondent contacted the complainant at the end of March and said that she could not allow her to do any more work. She said that the complainant was very upset and agitated upon hearing this and told her not to worry about paying her. The respondent told her that she could not contract her out to clients when she was in receipt of State benefits on maternity leave. She also asked her not to make further contact with her clients. They agreed that the small unfinished piece of work would be completed and that would be it. The complainant also told her about her upcoming appointment with the hospital consultant (about the baby's genetic condition) and the respondent wished her luck and asked her to keep in touch.

4.5 In the first week of April, the complainant contacted the complainant to tell her the good news about the baby's medical condition. The respondent submitted that they had a lengthy conversation and the complainant told her that she wished she had shown more concern when the respondent had lost her baby, because she now understood what she had gone through. The respondent offered her some ideas about how to cope with her loss. The respondent described their conversation as extremely emotional and serious.

4.5 The respondent refuted the complainant's claim that her communication stopped after the complainant informed her of intention to have another baby and submitted in support of this, an exchange of friendly emails between them dated 9th April.

4.6 The respondent submitted that the complainant called and texted her a number of times on 21st April regarding a client who she was working with. She submitted that she was avoiding responding, because she had nothing but bad news. She submitted that she was being rejected constantly for work and it was the most devastating time of her career. Her main training client had stood down all of their contracts, while they were undergoing a complete internal re-organisation. She was under pressure from creditors and she had not been able to pay herself. She did eventually speak to the complainant that day and she asked her to stop contacting the client while she was on maternity leave. She informed the complainant that she was putting the company in a precarious position, because of working while on maternity leave and because she had made errors in the work. She described the complainant as very upset, and so emotional she could hardly breathe. She begged to be included in work-related issues, but the respondent refused. The respondent said she asked her to back off a bit and the complainant became very annoyed. The complainant accused her of trying to steal her client work and the respondent said she felt harassed by her insistence at being involved, when she need to spend her time trying to find new business. She submitted that they went around in circles like this, until she eventually made an excuse to end the call. The complainant later sent a text to apologise for her outburst and to ask her to forget the conversation.

4.7 The respondent sent an email to the complainant on 23rd April in response to this phone call and text. This email stated that she could not forget the call. She acknowledged that the complainant felt left out of the business but stated that she would not keep calling her with bad news about being turned down for work, when the complainant had enough personal stress to handle. She assured her that the financial situation was under control as a result of giving up their office, not investing in computer equipment, taking a pension holiday, avoiding all spending and the respondent only claiming expenses, rather than salary. It stated that she felt that she was constantly under pressure to find a solution and she wanted them to share the work in the future. In oral evidence she stated that her email about the complainant returning to her "original conditions" referred to the complainant doing more training, because the project work had dried up. She submitted that there was no intention to change from the 3-day week she had been working prior to maternity leave and according to their email agreements. She said that the reference to the complainant becoming self-employed was in response to the complainant's own previous statement that she wished to become self-employed again after maternity leave. She stated that the reference to not making a "knee jerk reaction" referred to the complainant's past tendency to jump to conclusions and react quickly.

4.8 The respondent submitted that the complainant called her on the 24th to apologise for the phone call of 21st April. She acknowledged that the respondent was working hard to find new business and suggested that they meet the next day to discuss a potential solution. The respondent submitted that she thought the complainant was too stressed and not thinking clearly, so she offered to meet her on 28th April. She described this conversation as amicable. They met on the agreed date in a restaurant and she asked the complainant what her proposed solution was. The complainant said that she would work two days per week doing project work. The respondent said that the only work they had was doing three days training each week on behalf of a national training provider. The respondent submitted that she was very pleased to get this contract, as it would keep them both in work for 22 weeks. The complainant told her that she could do training work if she had to, but only if it was local or within easy commuting distance. The complainant said that the start times would not suit her and asked if they could be changed. The respondent submitted that this upset her, because she did not feel she had any power to change the terms set down by the client and she felt that the complainant did not understand how much the market had changed. The respondent said that she told the complainant that even when the start times did suit her, she had been late on an occasion in the past. The respondent denied that she had told the complainant that her job was gone, or any other words to that effect. The respondent submitted that the complainant asked her straight out whether she was trying to get rid of her and the respondent said no; she wanted the complainant to work and she was a Director of the company, so they had to work it out. The respondent submitted that she did not walk out on the complainant - they left together when the restaurant closed. The respondent submitted that the complainant was confused and stressed during the meeting.

4.9 The respondent submitted that when she began to receive the formal letters (see section 5) from the complainant's solicitor, she panicked and did not respond for a week, because she did not know what to do. She submitted that when the communication started to go through the solicitors instead of directly between the, everything was blown out of proportion. She was advised by her solicitor that when the complainant returned to work, she should go through the Grievance Policy with her, to ensure that situations like this could be avoided in future, by dealing with the matters internally.

4.10 The respondent submitted that she required the complainant to return to work on 24th August, because they were due to start a training programme for their client on 6th September. She submitted that she included a copy of the training programme when she declined the complainant's holiday request. When the complainant returned to work, the respondent said that they were very nervous of each other and they were both uncomfortable. She had set out a schedule for her first three days back, which started by asking the complainant to read through all their policies. She submitted that she went through the following issues on the complainant's first day:
* She asked the complainant to read through the Grievance Procedure and other policies also, because there had been some changes.
* She explained to the complainant that as a result of her (the complainant's) internet usage, their IP address had been stolen and used for fraudulent scams. Their internet access had been shut down for 5 days as a penalty by their ISP and the ISP refused to fix the problems caused to their site. As a result she had to pay a private contractor to sort it out. Additionally they were banned for 3 years from having their own IP address as a penalty for what had happened. She submitted that the complainant had accessed a large number of casual and low security medical sites and this was what had caused the security breach. She submitted that she used the term "inappropriate content" on that day. She submitted that the main source of her annoyance over this matter was not solely the medical sites; it was the fact that the complainant failed to keep her laptop updated with anti-virus software and that this issue had been a source of contention between them for many years. She was also annoyed that the complainant had performed a major data dump before handing her laptop back for maintenance. She submitted that this included deleting company files, email files and internet history. She denied that she had inferred the complainant had accessed pornographic sites - she stated that in the context of their discussion and her explanation, it was clear that she was referring to the medical websites. She further submitted that she did not leave the accusation "hanging" - the reason for not pursuing the matter further was because it was not an investigation and the laptop was of no further use.
* The respondent brought up the errors which the complainant had made on work done prior to and during her maternity leave. She emphasized the serious nature of the errors and said she would have to manage her more closely and get regular updates from her on projects she was working on.
* She advised her that their fees from the national training provider had been cut by 8% and this necessitated a paycut which would take effect in two months. She submitted that the complainant told her she would need to check this with her solicitor.
* She proposed that the complainant use her own mobile and expense her business calls. The complainant disagreed with this and the following day it was agreed that the complainant was to continue using a company phone. She told the complainant that she would have to use the office computer, as they did not have funds for a laptop at the time. She stated that a laptop would be purchased when they had the money.
* She agreed to the complainant's request for a later start time and shorter lunchbreak and was surprised to even be asked, as they had a flexible schedule prior to that.
* She told the complainant that they needed to rebuild trust between them.
* She went through the accounts and presented the financial situation of the company. She explained to the complainant that there was no money left at all and that all possible extras had been cut from the budget. She advised the complainant that their income had dropped from €370,000 in 2008 to €78,000 in 2009. As a result of this drop and their future prospects, she informed the complainant that her accountant had suggested that it might not make sense to continue trading as a limited company. If they were to become self-employed, they could avoid all the costs associated with running a limited company. She submitted that the complainant was a Director of the company and needed to know this information. She submitted that she had the impression that the complainant no longer wished to be a Director and so she asked her to make a decision on this by October, as the matter needed to be fully settled by November, for accounting reasons. She submitted that the complainant told her that she would need to check this with her solicitor.
* The respondent submitted that when the complainant mentioned her solicitor for the second time, she told the complainant that she was scared of her and that she (the complainant) "had her over a barrel". She accepted that she said the complainant was making her out to be a monster. She felt that everything she said was being misconstrued. She decided to take a break and she left for her lunch. She denied that the complainant was forced to eat in her car and said that there was no need for her to leave the office, because she was alone there. She stated that when she returned, things were calmer and they worked together fine all afternoon.

4.11 The respondent submitted that on the second day the complainant asked her again about the "inappropriate content" on the internet. The respondent submitted that she repeated what she had said the previous day in terms of explaining the issue, but admitted that she did use the term "adult content" on this occasion. The respondent denied that she had told the complainant that she was sorry for being nice to her. The following day the complainant worked from home. In terms of work, the respondent submitted that the complainant produced good work during the three days she worked.

4.12 The respondent submitted that the training programme which was due to start in September was changed to October by the client, who informed her of this on 30th August. As a result of the changed start date, she did not advise the client that the complainant was sick, as she hoped that she would be back by the time the contract started. When she realised that the complainant was not returning, she asked another trainer to work with her, but the other trainer was not interested in leaving her job. As a result she was obliged to withdraw from the training contract altogether, because two trainers were required to perform the contract. She did not seek another co-trainer, because the required trainer-profile was very specific and she submitted that she felt completely defeated by this stage. She submitted that this contract had been her last hope for getting the company back on track and since then, the company has all but gone out of business.

4.13 The respondent strongly refuted the contention that the complainant was intimidated by her and submitted that on the contrary she constantly felt under an emotional obligation to accommodate the complainant's personal circumstances.

4.14 The respondent refuted the complainant's suggestion that there was non-training work for her to do and pointed out that the complainant's contact at the telecommunications company, her main client, had been made redundant at the start of 2009 and no further work had been received from that client since then.

5.0 Letter/email Exchange between the parties from 30 April -19 August 2009 (Equality Officer's summary)

5.1 On the advice of her solicitor, the complainant wrote to the respondent following the meeting at the restaurant on 28th April. In this letter dated 30th April, she stated that she was shocked and hurt by the email of 23rd April and that she was concerned that her contract of employment was to be unilaterally altered. She enclosed her contract of employment, as set out in the emails of February 2008 and October 2008 and stated that she could not accept the proposal to return to her original position, or become self-employed.

5.2 The complainant did not receive an answer from the respondent, so on 11th May, her solicitor wrote to the respondent reiterating the contents of the letter of 30th April and reserving their client's position to make a claim for constructive dismissal based on the email of 23rd April.

5.3 On 12th May, the respondent wrote to the complainant in response to her letter of 30th April, stating that:
* she was sorry the complainant was upset by the email of 23rd April. She stated that she had always been sympathetic of the complainant's changed personal circumstances and that she had continuously attempted to facilitate her request not travel or to do overnights. She stated that this was not always agreeable to the business or herself, since it meant that she had to do the overnights herself instead.
* She stated that that she believed it was inappropriate to provide the complainant with work during maternity leave, despite her requests, and that was the reason she sent the email of 23rd April. She noted that the complainant had understood this email as an attempt to unilaterally change her conditions of employment and she wrote that the email was never intended to do that. She stated that on several occasions she had agreed to significant changes in order to meet the complainant's personal circumstances.
* She stated that upon return from maternity leave, the complainant would be required to perform her duties in accordance with her contract (which was the email of 6th October, as attached by the complainant in her previous letter). She stated that the provision of training services was fundamental to the company and that they were both obliged to be reasonable in what was best for both of them and how it could be achieved. She stated that she looked forward to hearing from her towards the end of her maternity leave with confirmation of her return date.

5.4 On 15th May, the complainant's solicitor wrote to the respondent stating that there was ambiguity in her letter of 12th May. They noted the respondent's apology for the email of 23rd April and stated it had been particularly upsetting as it occurred during a period of protected leave. They stated that the respondent must confirm firstly, that the complainant's contract of employment remained as set out in the emails of February 2008 and October 2008 and secondly that any future alterations to her contract would not be imposed unilaterally. They stated that the complainant would have no difficulty discussing her conditions of employment upon her return from maternity leave.

5.5 On 29th May, the solicitor wrote again to the respondent, having not received a reply to the previous letter. They urged a response and stated that they could not rule out legal proceedings in default of a response. On 17th June, the solicitor for the respondent made contact with the complainant's solicitor by phone and email. For the next month, a series of non-substantial correspondence was exchanged between the legal representatives.

5.6 On 17th July, the respondent solicitor wrote to the complainant in formal response to her letter of 15th May. The letter set out in detail the situation of the company and the work requirements for the complainant:
* It stated that the complainant's contract remained as set out in the emails of Feb 2008 and Oct 2008; ie: a 3-day week, with the option of doing more hours if they became available. It stated that there had never been any question of the respondent resiling from this position.
* It stated that the respondent's position with respect to the type of work available to the complainant remained as per the email of 23rd April; ie: that the only available work was in training. It stated that the Project Work, which the complainant had a preference for, had significantly reduced and the focus of the business had been forced to move to Training. It stated that the respondent was entitled to assign work to the complainant in accordance with the needs of the business.
* It stated that the respondent would get in touch directly with the complainant (with her solicitor's permission) regarding the proposed return to work date, which was disputed between the parties.

5.7 On 27th July, the respondent solicitor sent a further letter to the complainant, noting that no response had been received and forwarding a letter from the respondent to the complainant about the disputed return to work date. (This letter accepted the complainant's request to take unpaid maternity leave, but denied her additional request to take 5 days holidays, on the grounds that it was not convenient.)

5.8 On 10th August, the respondent solicitor sent a further letter to the complainant, requesting a response to the previous letters and noting that the complainant's return to work was scheduled for 24th August and a work schedule had been prepared for that date, which was drawing close.

5.9 On 11th August, the complainant solicitor responded, making a number of points, inter alia;
* It stated that all correspondence relating to this matter must be read in light of the respondent email of 23rd April, which they alleged to be discriminatory under the Acts on the grounds of gender, family status and marital status. It alleged that the respondent had grave difficulties with the complainant and it was clear from the email of 23rd April that her personal circumstances were at odds with what the respondent viewed as legitimate business needs and that the subsequent correspondence sought to downplay that email and its devastating effects on the complainant.
* It stated that the refusal to allow the complainant to take holidays at the end of her maternity leave was further discrimination.
* It requested clarification that the complainant would return to a 3-day week, as per her contract of employment.
* It stated that while the complainant was cognisant of the relationship of employer and employee with respect to the assignment of appropriate duties, she would not permit further discrimination to be visited upon her.
* It stated that the complainant reserved her position with regard to the issue of equality proceedings.

5.10 On 12th August, the respondent solicitor responded, making the following points, inter alia:
* It stated that they had made it very clear in their previous letter that there had been no change to the complainant's terms of employment and that she was entitled to return on a three-day week in accordance with her contract.
* It strenuously denied any discrimination.
* It stated that due to the economic crisis, the Project Work had significantly reduced and that the complainant herself had stated in an email that she was fully aware of this.
* It explained that the complainant could not take holidays at the requested time, was because the only work available was a training contract, which commenced at the end of the month. It specified that the complainant would be required to work on this training contract, for which she was fully qualified and registered on the national register.
* It stated that the respondent found the complainant's allegation regarding the return to work date, to be particularly hurtful. It stated that the respondent had previously taken enormous steps to assist the complainant to reconcile her work and family life, to the extent of providing baby-sitting services, bringing her to hospital for the birth of her child, allowing her baby to stay at the office, and taking on additional training duties which saw her (the respondent) away from home for up to four nights at a time.

5.11 On the 17th August the respondent solicitor wrote again to the complainant solicitor, attaching three documents as follows:
* A letter from the company's accountant showing that sales figures for the 9-month period ending 31 July 2009 were reduced to 62k compared to 372k for the year ended 31 November 2008 and that the respondent had not drawn a salary for the previous three months.
* A table of work schedules
* An overview of the Training Programme commencing September 2009, which showed the timetable and the new way of working which was required by the national training provider.

5.12 On 18th August, the complainant solicitor responded:
* It noted that the complainant would return to work on 24th August, but was greatly disappointed with the refusal of her reasonable holiday request and considered it an act of discrimination.
* It stated that the respondent criticised her work performance at the restaurant meeting on 28th April, said she had "piss-assed with childcare arrangements" and reminded her that she had to take sick days during her first pregnancy.
* It refuted the respondent's claim about the babysitting, stating that the complainant paid for any babysitting services and only brought her baby to work to avoid taking sick leave or force majeure leave.
* It stated that the arrangement whereby the complainant did mainly project work and the respondent did mainly training work, suited them both very well and no issues were ever raised.
* It stated that the complainant would return to work on 24th August, but that she would be initiating proceedings under Equality legislation in respect of the respondent's ongoing discriminatory behaviour and that a brief had been sent to a named Counsel.

5.13 On 18th August, the respondent solicitor responded that the named Counsel had already advised their client. On 19th August, they again confirmed the complainant's contract was as agreed in the emails of February 2008 and October 2008.

5.14 On 3rd September, the complainant's solicitor wrote to the respondent stating that she had been subjected to further discriminatory conduct upon her return to work. This caused her stress and anxiety and necessitated a visit to her GP. The letter stated that the respondent was aware that the complainant was on certified sick leave for anxiety. It further stated that as a result of the respondent's conduct and the GP's medical advice, the complainant had been constructively dismissed and legal proceedings would be forthcoming.

5.15 On 9th September, the respondent solicitor wrote to state that the respondent was not aware that the complainant was on sick leave for anxiety. The respondent had received the note from the GP, but the cause of illness was illegible. The respondent stated that the complainant had returned to work on the agreed date and the first two days, Monday and Tuesday, had passed without any complaint of stress or anxiety. On the Wednesday, the complainant worked from home as agreed and there were no issues. The complainant was not due to work on the Thursday or Friday, but left a voicemail for the respondent on Friday to say that a sick certificate would be coming from the doctor and that she would hand over the documents she was working on. The respondent denied there was any discrimination or constructive dismissal and stated that the complainant's job remained open for her.

5.16 On 29th September, the complainant solicitor responded, stating that a complainant had been made to the Equality Tribunal. It denied that the complainant had passed a pleasant day on her first day back and stated that she was subjected to victimisation and harassment upon her return, which led to her constructive dismissal.

6. Conclusions of the equality officer

6.1 Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination in relation to him. If he succeeds in doing so, then, and only then, is it for the respondent to prove the contrary. 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. In deciding on this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the complainant. It is only where such a prima facie case has been established that the burden of proving there was no infringement of the principle of equal treatment passes to the respondent.

6.2 Section 6(1) of the Employment Equality Acts, 1998 to 2011 provides that discrimination shall be taken to occur where "a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2)....." Section 6(2)(h) of the Acts defines the discriminatory ground of race as follows - "as between any 2 persons, ... that they are of different race, colour, nationality or national origins".

6.2 It is well established jurisprudence of the European Court of Justice (as has been held in the cases of Webb -v- Emo Air Cargo¹, Brown -v- Rentokil Ltd² and Dekker -v- Stichting Vorm.³) that women who are pregnant are to be afforded special protection in employment and their employment cannot be terminated from the beginning of their pregnancy until the end of their period of maternity leave (the protected period) save in exceptional circumstances unrelated to pregnancy. The Labour Court also held in the case of Intrium Justitia -v- Kerrie McGarvey⁴ that: "It is settled law that special protection against dismissal exists during pregnancy. Only the most exceptional circumstances not connected with the condition of pregnancy allow for any deviation from this. It is equally settled law that the dismissal of a pregnant woman (which can, obviously, only apply to women) 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 discriminatory treatment on the stated grounds did not take place".

6.3 Discriminatory Dismissal

6.3.1 For clarity, it is to be recalled that both the complainant and the respondent agreed that the respondent was not aware of the complainant's pregnancy at the termination date of the employment. The complainant's previous maternity leave ended on 23rd August 2012 and her employment termination date was 3rd September. Therefore the termination of the employment did not occur during the protected period. The claim must therefore be that either the decision to terminate her employment occurred during the protected period (ie: prior to 24th August) and was taken on the grounds of gender and/or family status, or alternatively that the complainant was dismissed on the grounds of family status following her return from maternity leave. In the former case, the burden of proof is lighter on the complainant, as a pregnant woman enjoys special protection during pregnancy and maternity leave. In either case, the claim is one of constructive dismissal, as it was the complainant who resigned her employment.

6.3.2 The complainant has submitted that the email of 23rd April shows that the respondent was trying to get rid of her, by giving her an ultimatum which would force her resignation, and by telling her at the restaurant meeting, that her job was gone. She submitted that insistence of the respondent in paying out her public holidays, instead of allowing her to take them at the end of her maternity leave was further evidence of trying to make her return difficult. Finally she submitted that the respondent's treatment of her during her first two days back at work (described in detail at 3.14 above) was so unreasonable that she could not have been expected to put up with it any longer. The respondent has defended her actions by saying that the email and the conversation at the restaurant were intended to set out to the complainant the details of the only remaining work which was available to them. She submitted that the specific return to work date was required as a result of their client's programme start date (and no different to her previous maternity leaves). The respondent submitted that the issues (as set out in Section 4.10) which were raised on the first two days were indicated by the needs of the business.

6.3.3 In order for the complainant to avail of the special protection afforded to pregnant women/employees on maternity leave, it must be demonstrated that the decision to terminate the employment happened during the protected period. I do not find that was the case here. The complainant's view is that the matter originates in the respondent's email of 23rd April. I accept that the complainant found it a harsh and strongly-worded email. However with respect to the terms of employment, I accept that the respondent's reference to the complainant returning on her "original terms" referred to her doing training, (as opposed to project work) and not to her returning to a 5-day week. I further accept, based on the oral evidence given at the hearing, that the complainant herself had talked about returning to her status as a self-employed contractor after maternity leave, and therefore the reference in the email to becoming self-employed was a response to that, and not an ultimatum or threat. Following this email, there was a series of requests from the complainant's solicitor to clarify the complainant's employment status; however my understanding of the ensuing correspondence is that the respondent clarified the matter of the 3-day week in her very first letter. The only conclusion I could draw from all the letters which followed, was that the complainant appeared to want confirmation that she could return to the type of work which she did previously. I accept the respondent's contention that this type of work was no longer available and that training was the only work available to the complainant. I further note that the respondent was specifically motivated to retain the complainant, because she required her skills in order to fulfill the requirements of the client's contract; in fact when the complainant's employment ended, she was obliged to withdraw completely from the contract. On the basis of all of the above, I find that the respondent did not make a decision during the specially protected period of maternity leave, to seek to terminate the complainant's contract.

6.3.4 The remaining argument is that the complainant was constructively dismissed on the grounds of gender/family status, based on the course of dealings between the parties during her maternity leave and the respondent's unreasonable behaviour towards her when she returned to work. In EED0410 An Employer v A Worker (the "Mr O case"), the Labour Court has summarized the law on constructive dismissal as follows:
"Section 2(1) of the Act defines a dismissal as including:
"[T]he termination of a contract of employment by the employee (whether prior notice of termination was or was not given to the employer) in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled to terminate the contract without giving such notice, or it was or would have been reasonable for the employee to do so...."
This definition is practically the same as that contained at section 1 of the Unfair Dismissals Acts 1977 -2001 and the authorities on its application in cases under that Act are apposite in the instant case. It provides two tests, either or both of which may be invoked by an employee. The first test is generally referred to as the "contract" test where the employee argues "entitlement" to terminate the contract. The second or "reasonableness" test applies where the employees asserts that in the circumstances it was reasonable for him or her to terminate the contract without notice.

The contract test was described by Lord Denning MR in Western Excavating (ECC) Ltd v Sharp [1978] IRLR 332 as follows:
"If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself discharged from any further performance"

This passage describes a situation in which an employer commits a repudiatory breach of contract. In such circumstances, the employee is entitled to accept the repudiation and consider him or herself dismissed. However, not every breach of contract will give rise to repudiation. It must be a breach of an essential term which goes to the root of the contract. This is a stringent test which is often difficult to invoke successfully.

There is, however, the additional reasonableness test which may be relied upon as either an alternative to the contract test or in combination with that test. This test asks whether the employer conducts him or her affairs in relation to the employee, so unreasonably that the employee cannot fairly be expected to put up with it any longer. Thus, an employer's conduct may not amount to a breach of contract but could, none the less, be regarded as so unreasonable as to justify the employee in leaving. Further, the employer may commit a breach of contract which may not be of such a nature as to constitute repudiation, but is so unreasonable as to justify the employee in resigning there and then.

Finally, the authorities indicate that what is reasonable is pre-eminently a question of fact and degree to be decided having regard to all the circumstances of the particular case."

6.3.5 In the circumstances of the instant case, I note that the reasonableness test, and not the contract test, is more appropriate. I further note that this is a claim of discriminatory dismissal on the grounds of gender/family status, and not an unfair dismissal claim. Therefore the complainant must demonstrate a nexus between the alleged behaviour and her gender/family status. (In this context it is to be noted that no change of gender/family status had occurred since before her leave.) In addition to demonstrating this, she must also demonstrate that this specific behaviour was so unreasonable, as to justify her resignation. I accept that the complainant was extremely vulnerable to anxiety, as she had just learned that she was expecting another baby and was understandably nervous following her recent loss. It is natural that she would not have wished to take any risks with her pregnancy and she was fully entitled to make a subjective decision based on her circumstances. However the test which must be applied is one of reasonableness, which implies an element of objectivity and the respondent in this case did not know the complainant was pregnant. In this regard I would distinguish the case from the Mr O decision cited above, where the employer knew that the complainant suffered severely and on a long-term basis from stress and anxiety- related depression.

6.3.6 At the hearing, the complainant submitted a note written by her GP to her Obstetrician, stating that the complainant was very anxious about her pregnancy as a result of what had previously happened and that she was under considerable strain with her work colleague, which was adding to her anxiety. This note was dated 10 August 2009 and the complainant submitted that the strain referred to was the exchange of letters between the parties. However the respondent did not know the complainant was pregnant and in any event, having read the letters, it is my view that the respondent's letters simply responded to the complainant and did not seek to antagonize the situation further. Therefore, while I accept that the complainant was genuinely distressed about the exchange of correspondence, I cannot accept that this was caused by the letters which emanated from the respondent's side.

6.3.7 When the complainant returned to work, most of the issues raised by the respondent during the first two days were related to specific work issues and I accept as a matter of fact that the company finances were in serious decline, that their work had changed and that they had faced severe consequences as a result of the IT problems. However on the other hand, there is the possibility that the reason the respondent raised these issues with the complainant was because she was aware of her wish to become pregnant again and she wanted to force her out of her employment before this happened. Or that the changed work landscape meant that the complainant was no longer a desirable employee (notwithstanding the fact that there had been no change to her family status). I have considered all the oral evidence before me relating to the motivation of both parties; I have looked at the long course of dealings between the parties and I have considered in detail the events of the complainant's first two days back at work. I accept that the complainant found the atmosphere tense and unwelcoming in her first two days back and that she was treated with a coldness and formality which had not previously existed. However on the other hand this is a case where context is extremely significant. The complainant had, through her legal representatives sent a series of (in my view) unnecessarily belligerent letters, culminating with a threat of legal action just a few days before she arrived back in work. On her return to work, the complainant documented everything that happened between the two of them and told the respondent on a couple of occasions that she would have to contact her solicitor about what they had discussed. Although the small size of a company or indeed any other element of the specific context does not change or diminish the employment rights of the complainant, I think it would be extraordinary to expect that the atmosphere between two people in a small office would not be cold and tense following such an exchange. The respondent submitted that she was terrified of the complainant and believed she was preparing a case against her, rather than preparing to settle back into work. On balance I find that while aspects of the respondent's behaviour towards the complainant were unpleasant upon her return, I do not find that the behaviour was so (objectively) unreasonable as to warrant the complainant considering herself constructively dismissed on the grounds of gender/family status. (However as noted above, I can fully appreciate the complainant's genuine fear that any stress could affect her baby and her decision is entirely understandable in a subjective context).

6.4 Harassment and Discriminatory Treatment
6.4.1 In relation to the claims of harassment and discriminatory treatment, Section 14A of the Acts define harassment:
(7) (a) In this section-
(i) references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds, and
.............
being conduct which in either case has the purpose or effect of violating a person's dignity and creating and intimidating, hostile, degrading, humiliating or offensive environment for the person.

(b) Without prejudice to the generality of paragraph (a), such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material.

6.4.2 Discrimination is defined at S.6(1) as where:
"(a) a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection(2)..."

6.4.3 The claims which potentially fall into the categories of discriminatory treatment or harassment are the events prior to the complainant's return and those which took place afterwards. Prior to her return to work, the complainant enjoyed the special protection afforded to women in pregnancy or on maternity leave. After maternity leave the complainant seeks to rely on the protection of the family status grounds (this is covered at section 6.5). The key events under dispute which occurred during the complainant's maternity leave are:
* The complainant submitted that the respondent displayed a sudden change of attitude towards her, when she said she would like to have another baby. The respondent submission is essentially that their relationship had been under strain for the previous two months because the complainant was insisting on being involved in work, whereas the respondent could not give her work, due to her maternity leave and the lack of business. This resulted in their phone argument of 21 April on this matter. I prefer the respondent's evidence on this point and I do not accept that there was either a sudden change in their relationship or that it was related to the complainant's wish to have another baby.
* The email of April 23rd: There are two elements of dispute here; firstly the complainant believed she was given an ultimatum, which would force her to leave her job and secondly she objected to the tone and language used, considering the circumstances she found herself in. On the first point, I believe the complainant misunderstood the email, and I do not accept that it was an ultimatum to force her out. On the second point, I do accept that the tone of the email was clearly angry and frustrated and this was particularly hard on the complainant considering her recent loss. I note that the respondent found herself in very tough circumstances and was particularly annoyed by the complainant's phone call of 21 April. However maternity leave is a specially protected period, and the complainant does not have to produce a comparator to succeed in her claim. It is sufficient to establish the fact of the treatment and its connection to the protected ground, in order to establish a prima facie case. In the case of this email, the respondent clearly expressed her annoyance with the complainant, in a manner which was connected with the complainant's pregnancy. Therefore I find that the complainant has established a prima facie case of discriminatory treatment. The respondent's defence refers to the provocation, the context and the subsequent correspondence. These factors may explain or mitigate her reaction, but they are insufficient as a complete defence to the prima facie case. Therefore I find that this email to the complainant was discriminatory treatment during the protected period of maternity leave.
* The complainant claimed that the respondent's treatment of her at the restaurant meeting was discriminatory. I did not find either party's recall of this meeting to be sufficiently credible; neither version matched either the other's or even their own written submissions. It was clearly a fraught meeting, but I do not find that this was discriminatory treatment or harassment.
* The complainant claimed that the exchange of letters, including the respondent's insistence on a start date which was disagreeable to her, was discriminatory treatment. I formed the view from reading the letters that the respondent made a greater effort than the complainant to clarify and appease the situation. Therefore I do not find that this was discriminatory treatment. On the matter of the holidays, I accept that the complainant's return date was dictated by the needs of the business.

6.4 Victimisation
6.4.1Victimisation is defined at S. 74(2)(f) of the Acts, which specifies that:
victimisation occurs where "dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to... an employee having opposed by lawful means an act which is unlawful under this Act or the said Act of 2000 or which was unlawful under such repealed enactment...or an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs." 
6.4.2 In this case, the complainant's legal representatives made it clear that the complainant considered herself to have been less favourably treated on the grounds of gender and/or family status and they put the respondent on notice by 19th August 2009, at the latest, that she would be taking a case under the Employment Equality Acts. The respondent was therefore on notice of the complainant's intention to make an equality complaint, at the time the complainant returned to work. It follows therefore that the respondent's treatment of the complainant in her first few days back at work, could potentially fall within the definition of victimization. The disputed issues are:
* The 8% paycut: The matter of consultation and notice with respect to implementing a paycut is outside the jurisdiction of the Equality Tribunal. On the issue of whether the imposition was victimization or not, I note the respondent's submission that the Government applied this cut to all professional fees. I accept that these fees were now their main source of income and I find on the balance of probabilities that the respondent would have sought the 8% paycut, even if there had been no claim of discrimination.
* The Directorship: I accept the respondent's submission that she had a deadline of the end of October to decide whether to wind up the company to save costs and that this was her motivation for raising the issue of Directorship with the complainant.
* The holidays: I accept the respondent's submission that she asked the complainant to return to work because the government contract was due to start two weeks later.
* The grievance/ disciplinary policy: I accept that the respondent asked the complainant to re-read the Grievance Procedure with a view to trying to deal with matters internally. I do not accept that the complainant was asked to read the Disciplinary Policy as a threat.
* The laptop: I accept that the respondent intended to buy the complainant a laptop at a future date, although I find it more likely that her reason for withholding it, was because she did not know whether the complainant would stay in her job, rather than solely for budgetary reasons.
* The email address: I accept the respondent's evidence that the complainant's email address was no longer usable; however I believe that she would have given her a new email address if the relationship between them had not deteriorated so far. This deterioration was in part due to the recent threat of legal action; therefore I find an element of victimization in asking the complainant to use the generic office address.
* The work criticism: the respondent has stated that she was well within her rights to raise specific issues about the complainant's work performance; however I find it unlikely that she would have done this in the first couple of days, but for the events of the previous few months. Therefore I find that there was an element of victimization in this.
* The websites allegation: The respondent complained to the complainant that it was her failure to update her anti-viral software and her access to inappropriate websites which led to the fraud investigation and ultimate sanctions against the company. The respondent admitted that she did use the term "adult content" to describe these websites. The complainant claimed that she was faced with a serious accusation and given no chance to have the matter investigated or to defend herself. I find that, while the respondent's annoyance about what happened to their computer system was understandable, it was unacceptable to accuse the complainant of accessing "adult content" websites. When challenged by the complainant, it was unacceptable for her to gloss over the accusation and say that was the end of the matter; she should have offered an apology or, if she had genuinely believed it, she should have investigated it. I find that this treatment of the complainant was victimization.

In summary therefore, I find that the respondent did victimise the complainant upon her return to work.

7. Decision

7.1. I have concluded my investigation of this complaint. Based on all of the foregoing, I find, pursuant to Section 79(6) of the Act;
* that the complainant was not constructively discriminatorily dismissed on the grounds of gender or family status.
* that the complainant was not harassed as a result of her gender or family status.
* that the email to the complainant dated 23 April did constitute discriminatory treatment during the complainant's protected period of maternity leave
* that the respondent did victimise the complainant upon her return to work when she treated her less favourably as a result of the complainant's specified intention to make a claim under the Employment Equality Acts.

7.2 In calculating the redress, I have taken into account all of the circumstances of the case. I must balance all of these factors with the requirement to ensure that sanctions are effective, proportionate and dissuasive. Pursuant to 82 (1) (c) I order that the respondent pay the complainant €10,000 for the effects of victimisation and €2,000 for the effects of discriminatory treatment. This is the lower end of the range for victimisation, due to the specific circumstances of this case. (It is equivalent to approximately 4 months pro-rated salary). This award is in compensation for the infringement of the complainant's statutory rights and, therefore, not subject to income tax as per Section 7 of the Finance Act 2004.

7.3 It is to be recalled that the parties had enjoyed a close working relationship for many years prior to 2009, when the complainant had suffered the terrible trauma of losing her baby. The respondent was dealing with the dramatic downturn in her business and the possibility that it would have to be wound up. Both parties were under severe stress at the time the material events in this case took place. It is to be greatly regretted that the matter became so legalistic so quickly and that so little effort was made to discuss it, to mediate or to simply take some time to let things settle down. The long-term impact on the parties has been extremely severe in both personal and professional terms.

_________________
Elaine Cassidy,
Equality Officer
20 November 2012
¹ Case C- 32/93
² Case C-394/96
³ Case C- 32/93
⁴ EDA095