Employment Equality Acts 2000 to 2008
DECISION NO: DEC-2012-157
Iwona Szewczyk
(Represented by Grogan and Associates Solicitors)
v
Mail Marketing Ltd.
(In Liquidation)
Date of Issue: 21 November 2012 File No. EE/2010/027
Keywords
Employment Equality Acts - discriminatory treatment - conditions of employment - ante-natal visits - prima facie case
1. Dispute and delegation
1.1 This dispute concerns a claim by Ms. Iwona Szewczyk (hereafter "the complainant") that she was subjected to discriminatory treatment by Mail Marketing Ltd. (hereafter "the respondent") on the grounds of her gender. The complainant claims that she was treated less favourably on the grounds of her gender as she was not allowed attend ante-natal visits in the course of her employment and was not paid when she attended ante- natal visits to the GP and the hospital. She alleges that she experienced this discriminatory treatment in late 2008 and early 2009.
1.2 The complainant referred a claim of discrimination to the Director of the Equality Tribunal on 18 December 2009 under the Employment Equality Acts. On 18 September 2012, in accordance with his powers under section 75 of the Acts, the Director then delegated the case to Valerie Murtagh- 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 3 October 2012.
2. Summary of Complainant's case
2.1 The complainant is a Polish national and was employed as a packer with the respondent from 11 January 2008 until 16 March 2010. Her hours of work were 8.30 - 5.00 Monday to Friday. The complainant states that she asked her manager if she could go for her ante-natal visit to the hospital which was in December 2008. She states that her appointment was for 7 am but she would not get out of the hospital until 12 noon as it was her first visit and tests had to be carried out etc. The complainant states that her manager said to her to take the day off. The complainant states that a week later she received her payslip and noted that she had not being paid for the day that she attended her first ante-natal visit at the hospital. The complainant states that she approached her manager, her manager responded stating that she would talk to the general manager about the issue. The complainant states that the general manager stated that it was at his discretion whether or not an employee gets paid for attending ante-natal visits. The complainant states that she was aware of two other employees who were paid for ante-natal visits but got the impression from management that she was with the company too short a period of time in comparison to the other two staff members in order to avail of paid ante-natal visits. The complainant also stated that she was required to arrange her GP visits after 6pm when she got home from work as the employer would not facilitate her attending same during work hours.
3. Summary of Respondent's case
3.1 The respondent company is in liquidation and did not attend the hearing.
4. Conclusions of Equality Officer
4.1. I have considered all the evidence both written and oral presented to me. 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 her. If she 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. In a recent Determination the Labour Court , whilst examining the circumstances in which the probative burden of proof operates, held as follows -
"Section 85A of the Acts provides for the allocation of the probative burden in cases within its ambit. This requires that the Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. 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.
4.2 Having questioned the complainant at length during the hearing, I find that as a witness, her testimony was not entirely credible and she changed her evidence on a few different occasions. She stated that she arranged her GP visits after 6pm and then later in her testimony she said she went straight from work which would take twenty minutes and she finished work at 5 pm. She also stated that the discriminatory treatment related to 3 ante-natal visits as she went on pregnancy related sick leave in January 2009.
4.3 I note from the combined obstetric card that the majority of the hospital visits took place around lunchtime in the Rotunda so I am of the view that there is no reason why the complainant would be required to take the day off work when she could attend same during lunch hour albeit she may be detained an extra half an hour or so at this time. Similarly, other flexible arrangements could have been made with regard to GP visits for e.g. first thing in the morning or to leave work a half hour earlier in the evenings. It appears from an examination of the combined obstetric card that only three ante-natal visits are in question as the complainant went on sick leave in mid-January 2009 and there is no onus on the employer to pay for ante-natal visits if the employee is on sick leave.
4.4 Overall, I am not satisfied that the complainant has provided enough evidence to support her allegation that her employer refused to pay her for attendance at ante-natal visits. In my view, the complainant has not established a prima facie case of discrimination in her working conditions relating to this matter. I also find the complainant's testimony unreliable with regard to her statement that two other staff members at this time in late 2008 were given time off to attend ante-natal visits and her claim that because she was a shorter length of time with the company, she was denied same. Even if I accept this testimony as being credible, which I do not, this is not less favourable treatment on grounds of her gender, it relates to the length of time she was with the company.
5. Decision of the Equality Officer
In reaching my decision, I have taken into account all the submissions, written and oral that were made to me. Having investigated the above complaint, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts, 1998 to 2008. I find the complainant was not discriminated against by the respondent in relation to her conditions of employment on grounds of gender, in terms of section 6(2) of the Acts and contrary to section 8 of the Acts. Therefore, the case fails.
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Valerie Murtagh
Equality Officer
21 November, 2012