Employment Equality Acts 2000 to 2008
DECISION NO: DEC-2013-154
Patrycja Hinca
(Represented by Thomas Coughlan & Co. Solicitors)
v
H & R Ainscough Ltd.
(Represented by Sweeney Solicitors)
Date of Issue: 20 November 2013
File No. EE/2011/296
Keywords: Employment Equality Acts - gender - working conditions - discriminatory dismissal - prima facie case
1. Dispute and delegation
1.1 This dispute concerns a claim by Ms. Patrycja Hinca (hereafter "the complainant") that she was subjected to discriminatory working conditions and dismissal by H&R Ainscough Ltd. (hereafter "the respondent") on the grounds of her gender. The complainant claims that when she advised her manager of her pregnancy, her work hours were reduced and shortly thereafter she was dismissed from her employment.
1.2 The complainant referred a claim of discrimination to the Director of the Equality Tribunal on 21 February 2011 under the Employment Equality Acts. On 27 September 2013, 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 29 October 2013.
2. Summary of Complainant’s case
2.1 The complainant is a Polish national and was employed by the respondent as a shop assistant on 14 May 2010. She worked an average of 28-30 hours per week. She became pregnant in August 2010 with her first child. She continued to work a minimum of 28 hours per week up until October 2010. She had arranged to travel to Poland in mid October for a short holiday. Before she left, she informed her boss that she was pregnant. When the complainant returned from her break, she found that her roster was cut down to an average of about 18 hours per week. The complainant contends that there was no obvious reason to cut her hours as the business was busier than ever and no new staff had been taken on. The complainant submits that the hours that she lost were given to other existing staff.
2.2 The complainant contends that when she approached the manager to ask him why her hours were cut, he replied that he did not have to answer her and she states that he was very dismissive of her. On 12 December 2010, the complainant went out sick due to bronchitis and she informed her manager that she was certified fit to return to work on 27 December 2010. Her manager stated that there was no place for her in the company and dismissed her from her job. The complainant states that the sudden change in her working relationship can only be attributed to her pregnancy and submits that she was dismissed from her job on account of her pregnancy.
3. Summary of Respondent’s case
3.1 The respondent did not attend the hearing, however a solicitor on behalf of the respondent attended and stated the respondent company ceased trading on 31 December 2012. In its written submissions to the Tribunal, the respondent stated that when the complainant commenced employment it was clearly explained to her that her working hours would constantly vary according to the demands of the roster. Among other things, these variations would occur dependent on staff holiday requirements, illness etc. The respondent contends that the complainant did not have an entitlement to 28-30 hours per week but insofar as she may have worked these hours, this would have arisen from the availability of additional hours due to holidays etc. The respondent states that it became aware of the complainant’s pregnancy when she asked for special rostering considerations at very short notice in October 2010. It states that she confided her situation to the manager, Mr. A and that she stated she wished to be unavailable for four days in a particular week in October 2010 as she wanted to consult with doctors in both Ireland and Poland. The respondent states that she was granted the time as she had already made the appointments. While the respondent tried its best to accommodate the complainant’s requirements, it experienced much resistance amongst the complainant’s colleagues who did not want to give up their own shifts or work on their days off.
3.2 The respondent contends that the complainant was hired on the basis of a twelve month probationary period and it was fully explained to her that her employment would only be continued if her performance reached an acceptable level. The respondent submits that the complainant was a disruptive influence in the workplace and showed open disregard and disrespect for management. The respondent contends that the complainant frequently abused Mr. A, and on one occasion, failed to attend paid training which had been organised by the respondent at which attendance was compulsory. The respondent submits that no explanation was given by the complainant for this non-attendance. The respondent states that from the outset of the complainant’s probationary employment, it found her to be openly hostile, aggressive and insubordinate. The respondent contends that the complainant’s hours were reduced as a reaction to her overall attitude and behaviour and the measure was in no way linked to the complainant’s pregnancy.
3.3 The respondent submits that the complainant went absent from work without notice, leave or explanation in the week before Christmas. The respondent contends that this was doubly difficult for it as there was also a full-time staff member on two weeks holidays. The result was that the remaining four shop assistants had to work seven days without a day off in order to keep the shop open. The respondent states that before her absence, the complainant appeared healthy. The date on her sick certificate is 20 December 2010 which is a full week after she went out on sick leave and no indication was given that she wished to return to work. The respondent states that it formed the view that there was no way of rehabilitating the complainant to the point where she could continue to work as a shop assistant. It states that she had escalated her poor performance at work to the point that even her colleagues had declared openly to management that they did not want to continue working with her. The respondent submits that at this time, it formed the view that the complainant was totally unsuited to her position and her employment, which at all times was and was understood to be probationary in nature, was terminated.
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[1], 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 examined the complainant’s payslips, I am satisfied that her hours were reduced from an average of 28 hours week to a lesser amount commencing in November 2010. While the respondent states that this was due to her aggressive and disruptive behaviour with him and other staff, it has provided no evidence to substantiate such a claim. I am satisfied that given the proximity of her advising Mr. A of her pregnancy and the reduction in her hours, she has raised an inference of discriminatory treatment and the respondent has not rebutted this evidence. The complainant states that in relation to the mandatory training provided by the company that she had an ante natal appointment at this time and was not in a position to attend. However, she stated that she had queried with the manager when the training was being organised if it would be paid for but that on the day in question, she had a medical appointment. The complainant stated that she got bronchitis in December 2010 and was out sick for about two weeks, subsequently on 27 December, she contacted Mr. A wishing to return to work and he stated that there was no place for her and that she must return her uniform. She states that at no time during her employment did she ever receive any verbal or written warnings. The complainant states that she is of the view that she was let go as Mr. A felt she would be unable to push the crates for unloading stock on account of her pregnancy. I am satisfied that no documentary evidence or witness testimony was provided to substantiate allegations by the respondent that the complainant had been spoken to about performance issues in her employment.
4.3 Overall, on examination of all the evidence, on balance, I am satisfied that the complainant’s hours were reduced following her advising her manager of her pregnancy. I find that she was discriminated against on grounds of her pregnancy in her working conditions in relation to the reduction in her hours of work. I am also satisfied that the respondent dismissed the complainant from her position due to her pregnancy. However, I note the complainant went out on sick leave on 12 December until the 28 December but only attended a doctor on 20 December in order to get a sick cert to state that she was unfit for work. Furthermore, I am of the view that in relation to the mandatory training provided for employees, the complainant could have changed her ante natal appointment to another date if she wished and been in a position to attend the compulsory training. However, despite the above mitigating factors, on balance, I am satisfied that the complainant has demonstrated prima facie evidence of discriminatory dismissal on the gender ground and in the absence of any arguments on behalf of the respondent to rebut the case, I find in favour of the complainant.
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 2011.
I find the complainant was discriminated against by the respondent in relation to her working conditions and was discriminatorily dismissed on grounds of gender, in terms of section 6(2) of the Acts and contrary to section 8 of the Acts. I therefore order, in accordance with my powers under section 82 of the Employment Equality Acts, 1998-2011 that the respondent pay to the complainant the sum of €12,000 which is roughly equivalent to nine months salary, for the distress suffered and the effects of the discrimination on her.
____________
Valerie Murtagh
Equality Officer
20 November, 2013
Footnotes:
[1] Arturs Valpeters v Melbury Developments [2010] 21 E.L.R. 64.
DEC-E2013-154