EMPLOYMENT EQUALITY ACTS 1998-2011
Decision DEC - E2013-007
PARTIES
Jennifer Phelan
Represented by Emer Meeneghan B.L. instructed by DM O'Connor & Co., Solicitors)
-V-
Carlie Healy t/a Teddy House Crèche
(represented by Michael Molloy, Blake & Kenny Solicitors.)
Fille Reference: EE/2010/387
Date of Issue: 11/02/2013
Keywords
Employment Equality Acts 1998-2011, Section 6(1) - less favourable treatment, Section 6(2)(a)- gender, 6(2)(c) family, Section 8 conditions of employment, pregnancy, Section 14A Harassment, Section 2(1)constructive discriminatory dismissal, Section 74(2) victimisation
1. Dispute
1.1 This dispute concerns a claim by the above named complainant that she was discriminated against by the above named respondent on the gender and family status grounds, in terms of Sections 6(1), 6(2)(a) and (c) of the Employment Equality Acts 1998-2011 and contrary to section 8 in relation to her conditions of employment. She also claims that she was harassed in terms of Section 14A and constructively dismissed in terms of Section 2(1) of the above mentioned Acts.
2. Background
2.1 The complainant referred complaints under the Employment Equality Acts to the Equality Tribunal on the 19th May 2010, the 9th of August 2010 and the 7th December 2010 alleging that the respondent discriminated against her contrary to the Acts. In accordance with his powers under section 75 of the Employment Equality Acts, 1998-2011 the Director delegated the case on the 10th of August 2012 to me, Marian Duffy, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of those Acts. This is the date I commenced my investigation. A written submission was received from the complainant on the 7th December 2010 and from the respondent on the 9th February 2011. As required by section 79(1) of the Acts and as part of my investigation, I proceeded to hearing on the 3rd September 2012 and the 16th and 17th of October 2012. The final documentation was received on the 29th November 2012.
3. Summary of the Complainant's Case
3.1 The complainant was employed by the respondent in March 2008 as a Montessori teacher. She said that she taught children between the ages of three and five and worked in that capacity up until she went on maternity leave in December 2009. Prior to commencing work with the respondent she said that she worked in an accountancy firm which did the accounts for the respondent and it was through this that she got the job in the crèche. She was offered a job by the respondent when she learned that the complainant was doing a Montessori teaching course. She got a contract of employment in March 2008 and her job title was a Montessori teacher. The complainant said that she enjoyed her work as a teacher and she also had a very good relationship with the respondent and often baby sat her children and stayed overnight in their home while the respondent and her husband were away.
3.2 The complainant said that she learned she was pregnant in May 2009 and that her baby was due on the 7th of January 2010. She informed her manager Ms. A. initially and then the respondent when she came to the crèche. She said that she wanted to give her as much notice as possible. At first everything was alright and the respondent congratulated and offered her maternity clothes and a baby basket. Shortly afterwards she noticed a distinct deterioration in the working relationship. She was out sick in July with fatigue and when she returned she was not asked if she had recovered. She said that the respondent was very cool and hostile towards her and did not engage her in conversation and just said "hi". The complainant said that she felt intimidated by her. She suffered a condition during her pregnancy which necessitated attendance at a physiotherapist specialising in pregnancy related conditions in the hospital. She was of the view that the respondent begrudged her the time off to attend these appointments and also her anti-natal appointments. She said that she tried to arrange appointments as early as possible so that she would be in work by 9am to 9:15am. On the 18th of September 2009 she had an appointment with her doctor and had to leave work at 3pm. The manager was on a day off. She said that she worked through lunch so that she could get the time off There were 2 other staff on duty and the crèche was quiet as it was a Friday evening. As she was leaving the respondent was at the reception on the computer and when she addressed her to say she was going to the doctor the respondent did not look up or engage her in conversation. She said that she did not know what she had done to deserve this treatment. She heard later from her friend in the crèche that the respondent made a comment about her taking time off in the evening to attend the doctor. On Monday she asked to speak to the respondent. She said that the respondent was rude to her. Eventually she was called to the staff room. The complainant said that she raised the issue of the respondent complaining about her to the other staff members. The respondent told her that she was not pleased that the complainant had left the crèche in the charge of two inexperienced staff. The complainant said that the staff were experienced and they were there as long as she was. The complainant stated that the respondent told her she had nothing personal against her but that she was having problems in the other crèche.
3.3 The complainant said that on the 18th of October she had to attend the doctor with flu symptoms. The doctor was of the opinion she could have swine flu and she was prescribed medication for it and she was certified sick for two weeks. He told her that if she was fit she could return after a week. The complainant informed her manager and she then sent in a medical certificate. The respondent rang her querying the medical certificate and stating that it was vague and asking if the doctor had done tests. The complainant said that she was upset at the tone of the conversation and her husband telephoned the respondent to tell her that the complainant was upset and that if she needed more information that she could contact her doctor. The doctor certified fit to return to work after a week and she texted her manager Ms. A. and she was told that relief staff had been employed for the two weeks and she did not want to mess them about and she could return the following Monday. The complainant said that she sought advice about her right to return to work. Following this, the complainant went into work on Wednesday with her fitness to return to work certificate. After speaking to management she was not allowed to return to work until the following Monday. The respondent said to her that the staff were messing her about ringing in sick. The complainant returned to work the following Monday and she found the atmosphere cool. She answered the door to the respondent but she did not speak to her other than to say "hi" while she looked down at the floor. She did not engage her in conversation. The complainant said that another employee who has an ongoing medical problem was also out sick for two weeks and she was treated much more friendly manner on her return and the respondent spent a considerable time talking to her. The complainant said that while the respondent asked her later in the day how she was feeling she did not engage in any further conversation. She said that on another occasion the respondent opened the door of the Montessori class and demanded in a very rude manner that she wanted her Montessori certificate to put up on the wall.
3.4 On another occasion the complainant was off sick and hospitalised with a pregnancy related problem. She said that when she telephoned the Manager to let her know she felt that the tone of the conversation was not friendly. She said that she felt isolated when she returned to work and the respondent never made any enquiry about her health. She said that she was due to go on maternity leave on the 18th of December 2009 but she needed rest and she asked Ms. A around the 24th of November if she could take holidays and from the 4th of December and start her maternity leave early. The manager said that she would discuss it with the respondent but she had difficulty in finding out if she could take annual leave. She then got a text from the manager telling her that the respondent wanted her to complete a staff appraisal form and go through it with her before she left on maternity leave. The complainant said that she filled out the form and she set out her grievance concerning the way she was treated and she gave it to her manager. She said that she heard nothing further from the respondent about the staff appraisal scheme.
3.5 On the day before she left on maternity leave the complainant said that she made numerous attempts to contact the respondent about her holiday entitlements as she believed that she was not being given her correct entitlement. The respondent did not return her calls but she was aware that the respondent was on the telephone to the manager and would not speak to her. The respondent then called to the Montessori room and said that she was sorry she missed the complainant's calls but she did not have time to discuss her holiday entitlements. On the 4th of December, the day the complainant was going on maternity leave, the respondent was in the crèche but did not speak to her. She said that all the parents knew she was going on maternity leave and gave her presents and some parents remarked that the respondent did not speak to her. The complainant said that she was standing at the door and the respondent walked passed her and while she said goodbye to other staff she (the respondent) never addressed her. She said that she spoke to the manager about the way the respondent treated her and enquired of her if she knew what she had done to her to deserve this treatment. The baby was born three weeks early on the 16th of December 2009. The complainant said that while individual staff members visited her and brought presents for the baby she did not hear from the respondent or the manager. The complainant said that when the respondent had her baby she visited her and gave her a gift for the baby. She also said that every Christmas staff got cards and presents and that Christmas she was the only staff member that did not get anything.
3.6 On the 18th of May 2010 the complainant sent a letter to the respondent stating that she was returning to work on the 5th of July 2010. She was called to a meeting with the respondent and the manager on the same day. She was asked if she wanted to come back part-time or full-time. The complainant said that she enquired about the possibility of working part-time. The respondent said that she had some bad news for her but did not elaborate. She then enquired from the complainant about her qualifications and mentioned FETAC level 5 or 6 was now required for the new early childhood Government funded scheme (ECCE) and mentioned that POBAL had called to the crèche in connection with the qualifications of the staff. The complainant said that she telephoned the crèche the following day 19th of May to say that she wanted to return to full-time hours. On the 11th of June she received a letter from the respondent giving her part-time hours and informing that her full-time position had been offered to and accepted by the person who replaced her for maternity leave. Following receipt of some advice the complainant wrote to the respondent by letter dated 18th June 2010 confirming that she did not wish to work part-time and asking to return to the job she held prior to her maternity leave. A further letter from the respondent confirmed that the complainant could return to work on a full time basis but did not indicate the position.
3.7 On the 5th July 2010 the complainant returned to work. She discovered on her return that she would no longer be working in the Montessori class and that she was assigned to work in the toddler group. She was very unhappy with this as she had not worked with this group before and she only had training in Montessori and she wanted to continue for career purposes working as a teacher of Montessori. She took the matter up with the manager who told her that POBAL, who has a supervisory role for the ECCE scheme, had been in the crèche and told them that the complainant was not to be put back in the Montessori class. She said that she worked under protest in the toddler room and asked that the respondent come to a meeting to sort the matter out. The following day she said that her manager, Ms. A, shouted at her and said that she was in the toddler room and the person who replaced her while she was on maternity leave Ms. B was in the Montessori room. The complainant asked the manager not to speak to her in that manner again particularly in front of the children. A meeting was arranged with the respondent and the manager. The complainant pointed out she was employed to work in the Montessori class and she wanted that job back. The respondent said that POBAL had been out and that she was advised not to put her back into the Montessori class. She said that Ms. B was a fully qualified Montessori teacher and had years of experience. The complainant said that she became very upset at the fact that she was not getting her job back and the respondent asked her if she wanted to take the rest of the week off. The complainant said that she raised with the respondent the fact that they had been friends and that she did not understand why she had been treated so badly during her pregnancy and that she did not know what happened between them. The respondent said that she was sorry "if I came across that way" and told the complainant that she had a lot going on at the time. The complainant took the rest of that day and the following day off. When she returned to work she felt that the atmosphere was icy and that she was not wanted there. She said that she was not using her skills in the toddler room and she had no experience in dealing with toddlers. On Thursday the respondent came to the crèche and spoke to her and asked about her baby. She said that she removed her belongings from the Montessori room given she was no longer working there. She was uncomfortable with the atmosphere in the crèche and there was a lot of whispering going on behind closed doors. On Friday she was not told of her hours for the following week and neither was she given back the keys of the crèche. She was very anxious and on Monday she reported sick. She was certified as suffering from work related stress and unfit for work.
3.8 The complainant remained on sick leave until she was certified fit to return to work at the end of May 2011. The complainant wrote to the respondent by letter dated the 14th of June 2011 stating that she had been certified fit to return to work and informing her that she wished to return to work in her previous position. Further correspondence ensued between the parties and the complainant attended a return to work interview with the respondent on the 23rd August and she was provided with a job description of the duties she would be doing on her return. The complainant confirmed by letter dated the 7th of September 2011 that she would return to work on the 12th of September 2011 but she disputed the job description because she was not returning to her Montessori position. The complainant returned to work as planned and she was again informed her position was now in the toddler room and the complainant disputed this. She said that Ms. B, the person who replaced her in the Montessori room, was very rude towards her and did not speak to her. She worked under protest on the Monday and she requested that the matter be sorted. The respondent and Ms A. met her on Tuesday and she was again informed that she would not be going back to the Montessori room because of her qualifications and that her position was in the toddler room. She said that her baby was ill on Wednesday and she got a text at work from her partner in relation to the medication he should give her. She responded to the text and she was reported to Ms. B by another member of staff for using her mobile at work. Ms. B came to the toddler room and shouted at her for using the mobile and said that it was against the rules using the mobile in working time. The complainant said that she was not allowed to explain the reason. The complainant then complained to the manager about the treatment. On another occasion she was in the changing room changing a toddler and she forgot to wear the gloves. Ms. B noticed and again gave out to her. The complainant said that she had not been trained in the procedures regarding dealing with the toddlers. On another occasion Ms. B gave out to her again for not following procedures. The complainant filled out a complaint form and sent it to the manager. She also asked the manager to go through the policies and procedures with her and she did. She also held a meeting with her in relation to the grievances she had with Ms. B but the matter was never addressed directly with Ms. B. The complainant was not happy with the outcome of the meeting and she felt that her grievance with Ms. B was not dealt with.
3.9 The complainant made enquires from the manager about enrolling her child in the crèche for half days either in the morning or the afternoon. She believed there was adequate room for her but her request was turned down. She said that she was of the opinion that she was not wanted in the crèche. She said that Ms. B would not talk to her and the manager only spoke to her when she had to. She said that the attitude towards her was not good and on Friday the 23 September 2011 she broke down crying. She went to her doctor during lunch and she got a sick certificate. She gave the cert to her manager and said that she would be on sick leave the following week because of the bullying. The complainant remained on sick leave until September 2012 when she resigned from the employment.
4. RESPONDENT'S CASE
4.1 The respondent runs 2 crèches in Galway. She manages one herself and the one where the complainant worked is managed by Ms. A. The complainant was employed as Montessori teacher in March 2008. She worked in the Montessori room teaching pre-school children The respondent said that she knew the complainant from her accountants office and when she learned that she was doing a course in Montessori she told her that she had a vacancy for a Montessori teacher. She said that while she knew the complainant they were not friends outside work. She said that her own children knew the complainant from the Montessori class and she baby sat them on a number of occasions. In or around May 2009 the complainant informed her manager that she was pregnant. The respondent said that when she became aware of the pregnancy she spoke to the complainant and offered her some maternity clothes and a baby basket and also gave her a maternity dress to wear to a wedding. The respondent said that she had a baby herself in November 2008 and she was on maternity leave from then until September 2009. Her daughter was in the Montessori class until June 2009 and she used to collect her but after that she said that she was rarely in the crèche. In the Summer 2009 she was also busy setting up an after school service in a local school and that commenced operation in September 2009 and she worked there herself in the afternoons and did not have time to spend in the crèche which was managed by Ms. A.
4.2 On the afternoon of the 18th of September 2009 she called to the crèche and there were only two staff on duty and the complainant was not there. She said that she knew that the manager was on holidays. The ratio of staff to children was too low. She mentioned to the staff that the complainant should not have left them in charge of that number of children. She spoke to the complainant about it sometime the following week and told her that she should have arranged for cover with her or with someone from the other crèche before she left. The complainant went out sick in October 2009 with suspected swine flu. Following receipt of the certificate she telephoned the complainant about whether swine flu was confirmed because she wanted to notify the parents. Ms. A understood from the certificate that the complainant would be out for two weeks and she organised temporary for two weeks. The complainant's partner telephoned to say that the complainant was upset with the telephone call. The respondent told him that she had to know if it was definitely swine flu because of her responsibility for the children in the crèche. The complainant was not diagnosed with swine flu. The following week she got in touch with the manager and asked to return to work before the expiry of the two weeks. The manager had organised cover for two weeks and did not want to change it. The complainant contacted the respondent who told her that the manager had organised relief staff and that she should return to work the following Monday.
4.3 The respondent said that she was aware that the complainant requested to go on her maternity leave early in or around the 4th of December. She understood that she was going on sick leave and that she would not be back before her maternity leave started. She cannot recollect if she was in the crèche on the 4th of December but she forgot that the complainant was going on maternity leave that day. The respondent said that she throws a staff party at Christmas and that she never gives presents to staff. The complainant was invited but she could not come. The next time she saw the complainant was in January 2010 when she came into the crèche and they had a long conversation with her about babies. The complainant then telephoned her about returning to work and a meeting was arranged for the 18th of May 2010. At that meeting the complainant discussed returning to work and asked about part-time work. The respondent said that she told her that she should be able to arrange it. They also discussed the new regulations which had been introduced in regard the free pre school year introduced by the Government called the Early Childhood Care & Education Programme (ECCE) and the respondent said that she did not know if the complainant was qualified but that she would let her know. Pobal has responsibility for supervising the programme. The respondent said that she reorganised staff between the two crèches and she then asked the complainant's temporary replacement (Ms. B) in the Montessori room if she was interested in the full-time position. She believed that she had more experience and qualifications than the complainant. The ECCE programme came into effect in January 2010 and new rules were introduced in relation to qualifications of staff and all staff had to have level 5 FETAC by September 2012. The complainant's qualification was recognised at the time but she would have to achieve a level 5 or an equivalent qualification by September 2012. The complainant also wanted to work part-time and the respondent said that it was not suitable to have a part-time Montessori teacher. The complainant contacted Ms. A a week later and told her that she wanted to return full-time. The respondent said that she was made aware by the manager that the complainant contacted her couple of times about returning fulltime. The respondent said that she had already organised staff and she could not put the complainant back into the Montessori room.
4.4 The complainant telephoned her on the 10th of June 2010 about returning full time and that conversation with the complainant did not go well. She said at that stage she had got the complaint from the Equality Tribunal and she was also pregnant at that time and was experiencing difficulties around the pregnancy. She said that she offered the complainant a fulltime position in the other crèche but she declined it. She wrote to the complainant on the same day and advised her that her hours would be 8am to 1pm on her return from maternity leave and that her replacement on maternity leave had been offered and accepted her fulltime position. The complainant then wrote to her on the 18th of June 2010 stating that she was returning to work on the 5th of July following her maternity leave and stating that she was expecting to return to the same position she occupied before her maternity leave. The respondent said that following receipt of this letter she rearranged the staffing and she wrote to the complainant on the 28th of June confirming her full time hours. As the complainant's position in the Montessori room was now filled she placed her in the toddler room. The complainant was not informed before she returned that she was going into the toddler room. The complainant returned to work on the 5th of July and the respondent said that she was informed by Ms. A that she was refusing to move to the toddler room and that she was creating a scene in front of parents. The respondent said that she went to the crèche and had a meeting with the complainant. She was very upset that she was not back working in the Montessori room and she said that she would have appreciated a phone call about the matter. The complainant became very upset and told her she had post natal depression. She offered her the rest of the week off. The complainant went home that day and she stayed out the following day. She then e-mailed her to say that she was returning to work on the Thursday. The respondent said that she spoke to the complainant in the toddler room and she said that she was fine. The complainant called in sick on the following Monday the 12th of July 2010.
4.5 The complainant remained out of work on stress related sick leave and on the 14th of June 2011 she contacted the crèche saying that she wished to return to work. Some correspondence ensued between the parties and the respondent requested a back to work certificate. She also had a meeting with her to advise her of some changes in the crèche and to make sure the complainant would know that she was working in the toddler room on her return. The complainant came back to work on the 12th of September 2011 and she was working in the toddler room. Her replacement in the Montessori room Ms. B was now the named person in charge in the manager's absence. The complainant made a complaint about being bullied by Ms. B. The manager investigated the complainant and the respondent said that she did not become involved. On the 23rd of September 2011 the complainant handed in a sick certificate and has not returned to work since then.
4.6 Ms. A said that she was the manager of the creche for 4 years. The complainant told her that she was pregnant in early May 2009. She said that she was delighted to hear the news and she told the respondent a few days later. All staff has a signing in and out folder and a calendar in the staff room where appointments were filled in and the complainant could fill in her anti-natal appointments. She said that there was no difficulty in getting time off for anti natal appointments. Ms. A said that she was holidays in May and again in September and the complainant was in charge while she was away and she accepted that the complainant had to work about 45 hours a week while she was away. She said that the complainant was out sick in June and again in July for a week. In October the complainant reported sick with suspected swine flu and she understood that she would be out for 2 weeks. Ms. A said that she understood that the complainant would be out for 2 weeks and she organised cover and replaced the complainant with Ms. A who also covered during the complainant's maternity leave. The complainant indicated that she wanted to return before the 2 weeks had elapsed as the doctor had declared her fit for work. She told the complainant that she could not take her back as she had employed another person for two weeks to cover her absence. In September 2009 Ms. A said that she was on holidays for 2 weeks and the complainant was in charge. She heard on her return that the ratio of staff to children was too low on the 18th of September when the complainant left to take a doctors appointment. She said that the complainant should have arrange the doctor's appointment for a different time, but she also accepted that if the complainant worked through her lunch she was entitled to leave at 4pm for the appointment.
4.7 The complainant was due to go on maternity leave the 21st of December but she asked to go early. Ms. A said that she understood that she was going on sick leave. The complainant enquired about holidays and she believed that she was entitled to holidays. The complainant wrote out a schedule of her holidays and she told her to take it up with the respondent. She was upset about her holidays on the 4th of December the day she was leaving on maternity leave and she advised her not to be stressing herself out. Ms. A denied that there was a bad atmosphere in the creche or that the complainant ever complained to her about her treatment by the respondent. She accepted that she did not contact the complainant after the baby was born but she said that other members of the staff visited her and bought her a present. At the end January the complainant visited the creche with her baby and they had a good chat and the respondent was there also.
4.8 In the middle of May she received a telephone call from the complainant about returning to work and she arranged a meeting with her and the respondent for a chat. The complainant asked about the possibility of part-time work and it was agreed that they would look into it. A week later she said that she received a phone call from the complainant indicating that she wished to come back full time. She informed the respondent. Some time later the respondent informed her that the complainant was coming back full-time and that she would be working in the toddler room. The complainant reported for work on the 5th of July 2010 and she informed about the toddler room. The complainant was upset. She accepted that the complainant did not work in the toddler room up to this. She also said that she was not aware that a person on maternity leave was entitled to return to the position she held prior to the maternity leave. She said that the complainant did not get the Montessori job back because she requested part-time work and the position in the Montessori room was now filled by Ms. A.
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 The complainant's case is that she was discriminated against and harassed in relation to her conditions of employment and consequently was victimised and constructively dismissed by the respondent on the grounds of gender and family status in terms of Sections 6(1), 6(2)(a) and (c) of the Employment Equality Acts, 1998 - 2011 and contrary to Section 8 of that Act. In making my decision I have taken into account all of the evidence, both written and oral, made to me by the parties.
The first matter I have to consider is whether the complainant was discriminated against and harassed in relation to her conditions of employment on the gender and family status ground for reasons connected with her pregnancy.
Section 6 (1) provides:
"discrimination shall be taken to occur 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) (in this
Act referred to as the ''discriminatory grounds'') which -- ......
(2) As between any 2 persons, the discriminatory grounds (and
the descriptions of those grounds for the purposes of this Act) are --
(a) that one is a woman and the other is a man (in this Act
referred to as ''the gender ground''),
......
(c) that one has family status and the other does not (in this
Act referred to as ''the family status ground''),
Section 6(2A) provides:
6(2A) "Without prejudice to the generality of subsections (1) and
(2), discrimination on the gender ground shall be taken to occur
where, on a ground related to her pregnancy or maternity leave, a
woman employee is treated, contrary to any statutory requirement,
less favourably than another employee is, has been or would be
treated."
Section 8 provides in relation to conditions of employment
8(6) Without prejudice to the generality of subsection (1), an
employer shall be taken to discriminate against an employee or prospective
employee in relation to conditions of employment if, on any
of the discriminatory grounds, the employer does not offer or afford
to that employee or prospective employee or to a class of persons of
whom he or she is one --
(a) the same terms of employment (other than remuneration
and pension rights),
(b) the same working conditions, and
(c) the same treatment in relation to overtime, shift work, short
time, transfers, lay-offs, redundancies, dismissals and disciplinary
measures,
as the employer offers or affords to another person or class of persons,
where the circumstances in which both such persons or classes
are or would be employed are not materially different.
5.2 I note that The European Court of Justice in Dekker v Stichting Vormingscentrum Voor Jong Volwassen (VJV Centrum) Plus ECJ C-177/88 [1990] ECR1-3941 found that pregnancy is a uniquely female condition and that where a woman experiences unfavourable treatment on grounds of pregnancy such treatment constitutes direct discrimination on the grounds of gender within the meaning of the Equal Treatment Directives Council Directive 2002/73/EC even though there may be no male comparator, and this is set out in section 18(1)(b) of the Employment Equality Acts, 1998-2008. Article 10(2) of EU Directive 92/85/EEC states that where workers are dismissed during pregnancy the employer must cite substantiated grounds in writing for the dismissal. The Labour Court followed this approach in the case of A Company and A Worker, Det. No EED016 and stated:
"Once an employee has shown that she has been dismissed or discriminated against, under the Burden of Proof Directive, the onus switches to the employer to show that such dismissal or discrimination was on exceptional grounds not associated with her pregnancy and such grounds, in the case of dismissal, as a matter of law and in the case of discrimination as a matter of good practice should be set out in writing."
5.3 The European Court of Justice in Brown v Rentokil Brown v Rentokil Case C-394/96 held that the entire period of pregnancy and maternity leave is a specially protected period during which both the EU Equal Treatment Directive 76/207 and the EU Pregnancy Directive EU Directive 92/85 prohibits dismissal on the grounds of pregnancy. Section 85A of the Employment Equality Acts, sets out the burden of proof necessary in claims of discrimination. It provides "Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary."
It requires the complainant to establish, in the first instance, a prima facie case of discrimination, that is, facts from which it can be established that she suffered discriminatory treatment on the gender in relation to her conditions of employment for reasons connected with her pregnancy. It is only when she has discharged this burden to the satisfaction of an Equality Officer that the burden shifts to the respondent to rebut the prima facie case of discrimination raised.
5.4 The complainant's case is that the respondent attitude towards her and treatment of her changed some time after she announced her pregnancy as set out at paragraph 3.2 to 3.7 above. The complainant states that her relationship with the respondent went from a very friendly one, to one where she was ignored and isolated. The respondent denied that she ignored the complainant or that she treated her differently after the announcement of her pregnancy. She stated that she was on maternity leave during this period and during the Summer of 2009 she was rarely in the crèche after her child finished in the Montessori room in June. She spent a large part of that Summer in Connemara. She was also setting an after school service in a primary school and she did not have time to spend in the crèche. I note that Ms. A said in evidence that while the respondent was not in the creche as often during the period from June onwards that she was there 4 or 5 time during the Summer.
5.5 I note that the complainant and the respondent knew one another when the complainant worked in an accountant's office and that the respondent offered the complainant a position in the Montessori class when she learned that the complainant was studying the method. She also had the complainant to baby sit for her on a number of occasions including staying overnight. I am satisfied therefore that the complainant was a trusted employee and on good terms with the respondent and they had a friendly relationship and that relationship deteriorated over the period of the complainant's pregnancy. The complainant said that she accepted that the respondent was not in the crèche everyday but she believed that she was cool towards her, did not engage her in conversation and she felt that she isolated from about July onwards. She said that she first noticed it after she returned from sick leave in July. The complainant said that she was suffering from exhaustion as a result of having to work extra hours when the manager was on holidays. She believed that the respondent was unhappy with her taking sick leave and was hostile towards her when she was in the crèche. She also said that when she was going on maternity leave the respondent was in the creche and completely ignored her and this happened in front of parents.
5.6 I note in the complainant's staff appraisal form the complainant, in response to a question about her relationship with the respondent, stated that it was "good but it used to be excellent - don't know what happened." I also note that the respondent's evidence is that she said that she forgot that the complainant was going on maternity leave however she did accept in evidence that the complainant requested that her application for holidays be sorted before she went on maternity leave. I am satisfied that the evidence of the manager Ms. A supports the complainant's contention that there were issues raised about holidays and the complainant was stressed about the fact they were not sorted prior to her maternity leave. I find therefore that there was a difference of opinion in relation to the amount of holidays the complainant was due and that the respondent did not sort it out prior to the complainant's leave despite requests to do so. I do not accept that the respondent could have forgotten that the complainant was going on maternity leave given small number of staff. I am of the view that if the relationship had not deteriorated over the period of the complainant's pregnancy, the respondent would have spoken to the complainant prior to her departure on maternity leave particularly given that she was in the crèche on the day. On balance I accept the complainant's evidence in relation to her treatment and I find that from about July onwards the respondent did not engage with the complainant in the same manner as happened in the past. While I accept that the respondent was not in the crèche as often as she had been once her child moved out. I am satisfied from the evidence that she did attend to collect and deliver items and to use the computer as she had no computer in the other crèche. In considering this case I have applied the reasoning of the Labour Court in the case of A Government Department v An Employee (Ms.B) EDA061 where the Court stated: "The proscribed ground ........ need not be the sole or even the principal reason for the conduct impugned; it is enough that it is a contributing cause in the sense of being a "significant influence" (see Nagarajan v London Regional Transport [1998] I.R.L.R. 73, per Lord Nicholls at p.576). ................
Finally, the Court must always be alert to the possibility of unconscious or inadvertent discrimination and mere denials of a discriminatory motive, in the absence of independent corroboration, must be approached with caution (see Nevins, Murphy, Flood v Portroe Stevedores [2005] 16 ELR 282)."
I have also noted the case of Nail Zone Ltd and a Worker ADE/09/65 the Labour Court stated:
"In a line of authorities, starting with Dekker v. Stichting Vormingscentrum voor jonge Volwassen (VJV-Centrum) [1991] IRLR 27 the ECJ has made it clear that, since pregnancy is a uniquely female condition, any adverse treatment afforded to a woman in consequence of her pregnancy constitutes direct discrimination on grounds of her gender. Furthermore, it is clear that the Complainant's pregnancy need not be the only or the dominant reason for the impugned treatment. It is sufficient if it is anything other than a trivial influence for what is complained of (see dictum of Peter Gibson LJ in Wong v Igen Ltd and others [2005] IRLR 258)".
Having examined the totality of the evidence presented I am satisfied on balance that the complainant has established facts from which it can be inferred that she was subjected to discriminatory treatment in relation to her conditions of employment on the gender ground for reasons connected to her pregnancy. I find therefore that the complainant has established a prima facie case in relation to this aspect of her complaint. I find no evidence of discrimination on the family status ground.
5.6 In relation to returning early from sick leave I note that the respondent had a certificate which indicated that the complainant could be absent for up to 2 weeks with swine flu. A temporary staff member had been engaged for the 2 weeks. In the circumstances, I do not find that the refusal to allow the complainant resume work earlier than the two weeks projected absence was discriminatory treatment. I am of the view that another person who was not pregnant and absence in similar circumstances would not have been allowed to return either because a temporary staff replacement would have been engaged also. In relation to the complaint about the respondent's comments about leaving the crèche early for a doctor's appointment, I am satisfied that the respondent was entitled to take the matter up with the complainant given that she was of the view that the number of children in the creche at the time exceeded the permitted number in accordance with the regulations. I find that the complainant was not discriminated against in relation to this aspect of her complaint.
5.7 The complainant also claims that she was harassed contrary to Section 14A of the Acts on the gender and family grounds. Section 14A of the Acts defines harassment as:
"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 an intimidating, hostile, degrading, humiliating or offensive environment for the person."
The Act goes on to give examples of unwanted conduct and states:
(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."
The complainant submitted that the treatment of her by the respondent as outlined above at paragraphs 3.2 to 3.7 constitutes harassment in relation to her conditions of employment under the Act. She also submitted that she was harassed on her return to work after her maternity leave by the manager Ms. A when she shouted at her and blocked her way when she attempted to enter the Montessori room. She also claims that her replacement Ms. B was rude to her when she went into the Montessori room to search for the telephone. The complainant said that she felt isolated and uncomfortable. She also submitted she was harassed by Ms. B on her return from sick leave in September 2011. Ms. B was now in charge in the manager's absence and corrected the complainant on a number of occasions when she noticed she was not following procedures. The complainant made a complaint about Ms. B under the grievance procedures and Ms. B spoke to her about her grievance and put a plan in place in relation to the complaints. Before the matter was finalised the complainant went out on sick leave again. It is clear that the manager dealt with the grievances raised by the complainant in so far as she could before the complainant went out sick. However I am not satisfied that the treatment of the complainant constituted harassment in accordance with Section 14A. Therefore the complainant has failed to establish a prima facie case in relation to this aspect of her complaint either on the gender or family status grounds.
5.8 The next matter for consideration is whether the complainant was discriminated against in relation to her conditions of employment on her return to work after her maternity leave. The complainant was due to return from maternity leave on the 5th of July 2010 and she met with the respondent and the manager on the 18th of May. There is a dispute over whether the complainant requested part-time work or whether the respondent offered her part-time work at that meeting. I am satisfied from the evidence that an enquiry about part-time work was made by the complainant at the meeting and it was agreed that the respondent would come back to her about it. I am also satisfied that it was merely an enquiry and that the complainant expected the respondent to revert to her with options before any decision was made about part-time work. However is clear from the evidence that before the respondent could revert back to the complainant that the complainant changed her mind and told the manager in or about the 25th of May that she wished to return to work on a fulltime basis. Notwithstanding this the respondent offered the complainant part-time work. The complainant confirmed in writing that she wanted to return to work on a full-time basis and to the position she held prior to her maternity leave. On her return to work she was placed in the toddler room even though she had expected to return to the Montessori room and she was given no notice of this change. The respondent submitted that the complainant's position had been offered to Ms. B, the person who replaced her while on maternity leave, and she had accepted the position and it could not be changed. She said that she was anxious to give Ms. B a job because she was unemployed. The respondent also said that Ms. B was more qualified than the complainant. The EU Directive 2002/73/EC states:
"A woman on maternity leave shall be entitled, after the end of her period of maternity leave, to return to her job or to an equivalent post on terms and conditions which are no less favourable to her and to benefit from any improvement in working conditions to which she would be entitled during her absence."
5.8 Therefore I will have to examine the evidence to establish if the position in the toddler room was an equivalent post and on terms and conditions that are no less favourable to her than the post that the complainant occupied in the Montessori room. The complainant's barrister submitted that this was a subjective test and referred me an EAT decision in the case of Taghe v Travenol Laboratories (Ireland) Ltd P14/1986 and reported at (1989) 8 J.I.S.LL124 in which the EAT held that the concept of a job that is suitable should be interpreted subjectively from the employees standpoint. In McGrath v Irish Distillers Ltd P1/2004 the EAT held that an employee who was not permitted to return to her position following her maternity leave was not assigned to a position of 'equal status, nature or extent'. I was also referred to the Equality Officer decision in the case Heather Lane v MBNA DEC-E2008-051 where the EO held that the employee was not returned to the same job after maternity leave even thought she had the same salary and title. The complainant was a qualified Montessori teacher and taught children in the 3 to 4 age bracket. The position in the toddler room for which she had no training involved dealing with much younger children and she was no longer using her skill as a Montessori teacher. I am not satisfied that the complainant was offered an equivalent post in terms of her qualifications experience and status within the crèche. I am satisfied that the complainant has raised a prima facie case of discriminatory treatment in relation to the position she was offered on return to work.
5.9 The respondent said that she could not return the complainant to the Montessori room because she had already offered the position to Ms. B. I note that the decision to offer the post to Ms. B was made while the complainant was still on maternity leave and without consultation with her as agreed about part-time work at the meeting of the 18th of May. I am satisfied from the respondent's evidence that she told the complainant at the meeting of the 18th of May that she would look into part-time work for her but no firm commitment was made in that respect. I note from the evidence that the question of the complainant's qualifications were raised at the meeting in the context of the ECCE scheme which had recently been introduced. From the evidence I am satisfied that the contract was offered after the complainant had notified the respondent through the manager that she wished to return to work full-time. I note the respondent had a vacant full-time position in the toddler room and she also had a vacant position in the Montessori room in the other creche from September 2010 onwards. I cannot accept that she could not return the complainant to the position in the Montessori room which she occupied before she went on maternity leave because she had given a contract of employment to Ms. B. The complainant had a written contract of employment which stated her position was a Montessori teacher. I note that the respondent believed that that Ms B was more qualified and more experience than the complainant. However the regulations stipulated that staff had until the 1st of September 2012 to achieve a level 5 FETAC qualification. The complainant said that her Montessori qualification was the equivalent of level 5 but there was some difficulty in getting it recognised because she obtained it from a private college. The respondent said that the creche was subject to an inspection by Pobal in relation to the ECCE scheme and that the teachers in the Montessori room had to have FETAC level 5 on the NFQ. She said that while the complainant's qualifications were recognised at the time but she would have to update them by September 2012. I note that the complainant had a Montessori qualification and that her replacement had a level 5 FETAC qualification in childcare. Likewise I note that the respondent advertised that she had a Montessori school. I am satisfied therefore that the complainant had more relevant qualifications as regards teaching Montessori at that time. In any event she had until the 30th of September 2012 to update them to comply with the ECCE programme. For the foregoing reasons, I find therefore that the complainant has established a prima facie case of discriminatory treatment on the gender ground and that the respondent has failed to rebut the inference of discrimination.
5.10 I am satisfied that the complainant has not produced any evidence from which it could be inferred that she was discriminated against on the family status ground in relation to this aspect of her complaint.
5.11 The next matter I have to consider is victimisation. Section 74(2) provides: (2) For the purposes of this Part victimisation occurs where dismissal
or other adverse treatment of an employee by his or her
employer occurs as a reaction to --
(a) a complaint of discrimination made by the employee to the
employer,
(b) any proceedings by a complainant,
(c) an employee having represented or otherwise supported a
complainant,
(d) the work of an employee having been compared with that
of another employee for any of the purposes of this Act
or any enactment repealed by this Act,
(e) an employee having been a witness in any proceedings under
this Act or the Equal Status Act 2000 or any such repealed
enactment,
(f) 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
(g) an employee having given notice of an intention to take any
of the actions mentioned in the preceding paragraphs.
The Labour Court in the case of the Department of Defence and Tom Barrett Det No. EDA1017 stated that the definition of victimisation contains three essential elements.
"(1) The Complainant had taken action of a type referred to at s.74(2) of the Acts (a protected act),
2. The Complainant was subjected to adverse treatment by the Respondent, and,
3. The adverse treatment was in reaction to the protected action having been taken by the Complainant."
5.12 It was submitted by the complainant's barrister that the complainant was victimised following receipt of the complaint from the Equality Tribunal in or around the 25th of May 2010. She submitted that the respondent decided to 'punish' the complainant by insisting that there was a concluded agreement in relation to her working part-time and when the complainant challenged this she was given a full-time post in the toddler room and she was not given her job back in the Montessori room. I have found above that there was no concluded agreement between the parties in relation to part-time work at the meeting of the 18th of May. I accept that the complainant made an enquiry about the matter and the respondent agreed to look in to it and come back to the complainant. I note that the complainant referred a complaint to the Tribunal on the 19th of May 2010 alleging discriminatory treatment in relation to her conditions of employment. It is clear that the respondent did not have a copy of the complaint form at the return to work meeting of the18th of May, however she did have a copy of the complaint on the 11th of June when she wrote to the complainant offering her part-time work. It was accepted in evidence that the complainant notified the manager in or about the 25th of May that she was no longer interested in part-time work because her personal circumstances had changed. I note the respondent offered Ms. B the complainant's replacement while she was on maternity leave, the position in the Montessori room on the on the 27th of May. Therefore the respondent knew when she offered the job to Ms. B that the complainant would be returning fulltime after her maternity leave. However it was not until the letter of the 28th of June 2010 that the respondent confirmed to the complainant that she would accept her back to work on a full-time basis and she did not tell her that she would no longer be working in the Montessori room. The respondent accepted that she was upset about receiving the complaint and that a telephone call between herself and the complainant around the 9th of June did not go well. On balance, I am satisfied that there was a link between the receipt of the complaint of discrimination and the decision not to return the complainant to her position in the Montessori room. I find that this treatment constitutes adverse treatment of the complainant within the meaning of Section 74(2). I am guided by the Labour Court decision in Watters Garden World and Iurie Panuta Determination No. EDA098 where it pointed out that in order to ensure the effectiveness of Employment Equality legislation 'the concept of victimisation should be construed as widely and liberally as can fairly be done and should be given a sufficiently wide ambit so as to encompass all forms of detriment inflicted on a worker by his or her employer for having committed a protected act.' I am satisfied that the referral of the case by the complainant influenced the decision not to allow her back as Montessori teacher following her return from maternity leave and to move her to the toddler room. I find therefore the complainant has established that she was subject to adverse treatment in accordance with Section 74.
5.13 The next matter I have to consider is whether the complainant was constructively dismissed. The complainant returned to work after her maternity leave on the 5th of July. The complainant submitted that she wished to continue working as a Montessori teacher but the respondent prevented her from doing so. She stated that when she returned to work the manager Ms. A shouted at her when she attempted to take her Montessori class and blocked her way when she tried to enter the Montessori room. She said that she was eventually informed that things had changed in her absence and that she was now working in the toddler room. She said that she worked there under protest. She requested a meeting with the respondent to sort out the matter. She submitted that the meeting was difficult. She was informed that Pobal had inspected the creche and issues had been raised about her qualifications in comparison to the qualifications of her replacement Ms. B. She pointed out to the respondent that her replacement had no Montessori qualifications and the crèche was advertising itself as having a Montessori school. Despite this she was informed that she would not be returning to the Montessori room. It was submitted as a result of this discriminatory treatment combined with the atmosphere in the creche following the failure of the respondent to sort out her position in the Montessori room that she suffered from stress. The complainant was certified by her GP as suffering from work related stress and she was absent on sick leave from the 12th of July 2010 until the 14th of June 2011 and she returned to work on the 12th of September 2011. The complainant went on sick leave again on the 26th of September 2011 and she submitted medical certificates to the respondent up until the hearing of this case in September 2012. On the 7th of December 2010 and during her sick leave the complainant's solicitor referred a further complaint to the Tribunal alleging inter alia that the complainant was subject to a discriminatory dismissal. It is clear from the evidence that the complainant did not resign from the employment at the time she referred the complaint of discriminatory dismissal. In fact she remained in an employment relationship with the respondent and sent in medical certificates after she claimed she was constructively dismissed and returned to work in September 2011.
5.14 Section 2(1) of the Act defines a dismissal as including:
"....the 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...."
In the case of An Employer v A Worker DET. No. EED053 the Labour Court defined the definition of constructive dismissal as follows:
"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 employee 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 his 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 going to the root of the contract but could, nonetheless, be regarded as so unreasonable as to justify the employee in leaving.
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."
5.15 There are two tests set out above to establish constructive dismissal (i) "entitlement to terminate the contract" and (ii) "reasonableness". Having considered the evidence I am satisfied that the complainant did not resign from the employment when she returned from maternity leave or in December 2010 when she referred the complaint of discriminatory dismissal. She remained in an employment relationship with the respondent up until September 2012. I find that the complainant cannot satisfy the test at (i) above because she did not resign following her return from maternity leave or in December 2010 when she referred the complaint. The second test is the "reasonableness" test. At the time the complainant resigned in September 2012 the complainant was on sick leave from the employment for over a year and maintained the employment relationship by sending in medical certificates and no further incidents of discriminatory treatment occurred which would have justified her decision to resign at that time. I find therefore that the complainant has not satisfied the reasonableness test. I find therefore that the complainant has not established a prima facie case of constructive dismissal.
6. DECISION OF THE EQUALITY OFFICER.
6.1 (i) On the basis of the foregoing, I find that the respondent discriminated against the complainant on the gender ground in terms of section 6(2)(a) in relation to her conditions of employment contrary to section 8 of the Acts for reasons connected to her pregnancy and for the failure to allow her to return to the position which she held immediately before her maternity leave.
(ii) I also find that the complainant was victimised in terms of section 74(2) of the Acts
(iii) I find that the complainant has failed to establish discriminatory treatment on the family status ground in terms of section 6(2)(c) of the Act and contrary to section 8.
(iv) I find that the complainant has failed to establish harassment in terms of section 14A of the Acts
.
6.2 Section 82-(i)(c) of the Act provides that I can make an order for the effects of the discrimination. The maximum award I can make under Section 82(4) is two years pay which in this case amounts €41,600. The EU Directives require sanctions for a breach of the principle of equal treatment to be effective, dissuasive and proportionate. In calculating the redress and taking into account all the circumstance of the case, I consider that an award in the amount of €5,000 is appropriate for the discriminatory treatment and €7,000 for the victimisation.
6.4 I therefore, in accordance with my powers under section 82 of the Employment Equality Acts, order the respondent to pay the complainant €12,000 in compensation for the effects of the discriminatory treatment and victimisation. This figure represents compensation for the infringement of her rights under equality legislation in relation to discrimination and victimisation and does not include any element relating to remuneration, and therefore it is not taxable.
______________________________
Marian Duffy
Equality Officer
11th February 2013