DEC-E2013-135

THE EQUALITY TRIBUNAL

EMPLOYMENT EQUALITY ACTS 1998-2011

Decision DEC-E2013-135

PARTIES

Malwina Przytula
(Represented by O'Hanrahan & Co., Solicitors)

-V-

Specialised Sterile Environments Ltd.
(represented by IBEC)

File Reference: EE/2011/558
Date of Issue: 30th October 2013

Keywords: Employment Equality Acts 1998-2011, Dismissal - Section 2(1), Section 6(1) - less favourable treatment, Section 6(2)(a)(b)(c) & (h) - gender, marital status, family status and race, Section 8 conditions of employment and discriminatory dismissal, Section19 and 29 - equal pay prima facie case.

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, marital status, family status and race grounds, in terms of Sections 6(1), 6(2)(a)(b)(c) and (h) of the Employment Equality Acts 1998-2011 and contrary to section 8 in relation to her conditions of employment and dismissal. The complaints on the race and disability grounds were withdrawn at the commencement of the hearing. The claim of equal pay could not proceed as the complainant was not able to name a comparator.

2. Background

2.1 The complainant referred a complaint under the Employment Equality Acts to the Equality Tribunal on the 22nd July 2011 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 18th of September 2013 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 22nd February 2012 and from the respondent on the 4th of April 2012. As required by section 79(1) of the Acts and as part of my investigation, I proceeded to hearing on the 9th of October 2013 and the final correspondence was received on the 14th of October 2013.

3. Summary of the Complainant's Case

3.1 The complainant is a Polish national and was employed by the respondent in Limerick as a cleaner from the 4th of August 2009 until the 5th of May 2011. The complainant said that she informed the respondent in February 2010 that she was pregnant and in March she went out on pregnancy related illness. She said that she provided medical certificates for the first two weeks and after that her employer did not ask her for any more certificates. She remained out sick until her baby was born in November 2010. She applied for maternity leave and the respondent completed the forms as requested and she was granted maternity leave from the 18th October 2010 until the 18th April 2011.

3.2 The complainant said that her partner had secured work in Dublin and had moved there in 2009 and she had informed her manager it was her intention to join him there and on the 10th of April 2010 she moved to Dublin. Before the end of her maternity leave she contacted her manager and asked him for work in Dublin. She said after a long wait she was offered 8.5 hours work in the city centre. The complainant said that this did not suit her as she lived in Skerries and the job was more than 40 kilometres away. She said that she had 15 hours per week before her maternity leave and this was a reduction in her hours and it would cost her more to travel to work. She telephoned a number of times looking for more hours in Dublin but the respondent told her she did not have them. The complainant said that the respondent invited her to resign. She said that she took two weeks to think about it and then she requested her P 45

4. Respondent's Case

4.1 The respondent denies that the complainant was discriminated against on any of the grounds alleged. It was submitted that the complainant worked as a cleaner in Limerick and she went on sick leave in March 2010 having notified her pregnancy in February 2010. She sought to return to work in Dublin following her maternity leave and the respondent attempted to accommodate her. At that time the respondent's contracts were mainly in Limerick and Galway. However they had some contracts in Dublin and they offered her the hours of 4 pm to 5:30 for 5 days in the city centre. The complainant rejected these hours. The respondent stated that these were the only hours available in the company which suited the complainant's family commitments as she could not work after 7pm. The complainant then requested her P45 and resigned from the employment. The respondent denies that the complainant was invited to resign.

5 Conclusions of the Equality Officer

5.1 The issues for decision in this case is whether or not the respondent discriminated against the complainant on the grounds of gender, marital status, family status in terms of section 6(1) and 6(2)(a)(b)(c) of the Employment Equality Acts and contrary to section 8 of those Acts as regards her conditions of employment and the ending of her employment. Section 6 of the Acts inter alia provides:

6. -- (1) "For the purposes of this Act and without prejudice to its
provisions relating to discrimination occurring in particular circumstances,
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''),

(b) that they are of different marital status (in this Act referred
to as ''the marital status ground''),

(c) that one has family status and the other does not (in this
Act referred to as ''the family status ground''),

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."
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."

And Section 85A of the Acts provides:

"(1) 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".

5.2 This requires the Complainants to prove the primary facts upon which she relies in seeking to raise an inference of discrimination. It is only when they have discharged this burden to the satisfaction of an Equality Officer that the burden shifts to the respondent to rebut the inference of discrimination raised. If the complainant does not discharge the initial probative burden required of her, her case cannot succeed. In reaching my decision, I have taken into account all of the submissions, written and oral, made by the parties.

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."

5.3 The first matter I have to consider is whether the respondent offered the complainant the same or an equivalent position to the one she had prior to her maternity leave. It is very clear from the evidence that the respondent fulfilled their obligations under the Directive and the complainant's own job was available for her in Limerick. However she was not in a position to return to that job because she was now living in Skerries. The fact that the complainant requested to work in Dublin because of her domestic situation and was offered fewer hours than she had in Limerick cannot be construed as discriminatory treatment on the gender, marital or family status grounds. The complainant was seeking to return to work in a different location to the where she worked prior to her maternity leave and in the circumstances there was no obligation on the employer to provide her with alternative work in Dublin to suit her new domestic arrangements. I find therefore the complainant has failed to establish a prima facie case of discriminatory treatment in relation to her conditions of employment and return to work following her maternity leave.

5.4 The next matter I have to consider is whether the complainant was discriminated against in relation to the termination of the employment. The complainant accepts that she resigned from the employment because the respondent offered her reduced hours of 1.5 per day (approximately 8.5 per week) in Dublin city centre and it was uneconomical for her to take up this hour because she lived in Skerries and would spend a disproportionate time travelling to and from work. The respondent's evidence is that they only had small contracts in Dublin at the time and these were the only hours suitable to the complainant due to her family commitments she could not work after 7pm. I am satisfied that the complainant resigned from the employment because she could no longer work in Limerick as she had moved to Dublin and the hours offered to her in Dublin did not suit her for various reasons. Furthermore there is no question of constructive discriminatory dismissal. I note that the respondent made every effort to accommodate her domestic and family situation and to find alternative work for her in Dublin. Accordingly, I find that the complainant has failed to establish a prima facie case of discriminatory treatment on either the gender marital status or family status grounds in relation to the termination of the employment.

6. Decision

6.1 Having investigated the above complaints, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts, 1998 to 2011. I find that:
(i) the respondent did not discriminate against the complainant on the gender, marital status and family status grounds pursuant to sections 6(1) and in terms of 6(2)(a)(b)and (c) of the Acts in relation to her conditions of employment and the termination of her employment and contrary to section 8(1) of the Acts.

_______________________
Marian Duffy
Equality Officer
30th October 2013