The Equality Tribunal
EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E2013-105
PARTIES
Patricia O'Brien
AND
National Hardware Limited
(Represented by Karl M. Carney & Co. Solicitors)
File reference: EE/2011/329
Date of issue: 10 September 2013
HEADNOTES: Employment Equality Acts - Sections 6 and 8 - Gender - Access to employment.
1. DISPUTE
1.1 This dispute concerns a claim by Patricia O'Brien that she was discriminated against by National Hardware Limited on the grounds of gender contrary to section 6(2)(a) of the Employment Equality Acts in relation to access to employment in terms of sections 8(1)(a) of the Acts.
1.2 The complainant referred her claim to the Director of the Equality Tribunal on 10 March 2011 under the Employment Equality Acts. On 23 April 2013, in accordance with his powers under section 75 of the Acts, the Director delegated the case to Hugh Lonsdale, 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. Submissions were received from both sides. In accordance with Section 79(3A) of the Acts and as part of my investigation I proceeded to a hearing on 28 June 2013.
2. COMPLAINANT'S WRITTEN SUBMISSION
2.1 The complainant submits that on 6 January 2011 she applied for a position of graphic designer to cover for maternity leave. The advertisement was for someone to work a six month contract with a possible extension and for a four day working week. The complainant attended for an interview on 26 January 2011.
2.2 In a telephone conversation on 9 February 2011 she was offered the position by Ms A. During this conversation the complainant informed Ms A that she was pregnant. She submits that Ms A replied that this changed things. The offer was revoked and Ms A said it was not company policy to employ someone who is pregnant; that it did not suit them to have more than one person cover the maternity leave if it was extended. She was not asked when the baby was due. The complainant reassured Ms A that she could work for the six months of the contract as her baby was due in August. The complainant submits she told Ms A that she could not revoke the offer because of her pregnancy as it could be deemed gender discrimination and Ms A said she would reconsider the position.
2.3 On 11 February, as Ms A had not responded as agreed the previous day, the complainant sent her an email asking her to put in writing why the offer had been revoked. On 15 February 2011 she received an email from Ms A which re-offered her the position. The complainant submits that the new offer was on different terms and conditions. The days and times of working were set, whereas in the interview she was told there was flexitime and she would be allowed to choose which four days she would be able to work each week. The offer stated: 'You will be expected to work up to 5 days a week. This may vary from week to week and is dependent on the volume of work in progress'. She was given one day to confirm her acceptance. The complainant felt that this new offer was not made in good faith.
2.4 On 16 February the complainant asked for an explanation about the changes to the job offer. The respondent replied on the same day and repeated the offer and stated that 'Flexibility is driven by our customers and clients needs and demands. Therefore, while working hours are flexible, ultimately this flexibility is dependent on the demands of the role.' They also said they took 'grave exception' to the suggestion of discrimination. The complainant felt her queries were not answered satisfactorily and replied to the respondent the following day and asked for an explanation of the discriminatory treatment. On 18 February the respondent repeated the offer and stated: 'We would like to confirm for you that this role is for an initial 6 month period with the possibility of this being extended up to 11 months. This extension will be confirmed at a later stage. We will be flexible within reason in relation to your start and finish time. Normal working day is 8 hours.' They asked the complainant to confirm by 21 February if she was accepting the position. The complainant replied on 20 February 2011 that she considered the respondent had not made the offer in good faith and turned down the offer. She advised the respondent that she would be consulting the Equality Authority.
2.5 The complainant submits she was treated in a discriminatory manner by the respondent when they withdrew the offer after she informed them she was pregnant and then changing the terms and conditions when the offer was remade.
3. RESPONDENT'S WRITTEN SUBMISSION
3.1 The respondent submits that they advertised a temporary position of Graphic Designer to cover for an existing member of staff who was going on maternity leave. In the interview it was clearly stated that position was for a minimum of six months and that the successful candidate needed to be available to work during this time.
3.2 The offer was conditional on this acceptance and the complainant accepted this at the interview. The complainant later informed them that she would not be available for the six month period and the offer was withdrawn on this basis; due to her unavailability not due to her pregnancy.
3.3 When the complainant later said she would be available for the six month period the position was offered to her in good faith. The offer was made on the same terms as usual for existing employees. Flexi time is in place for a number of years specifically to help staff cope with working arrangements.
3.4 The respondent utterly rejects the assertion that it was not their policy to employ pregnant women. They submit they are an Equal Opportunities employer and do not discriminate against any person.
4. FINDINGS & CONCLUSIONS OF THE EQUALITY OFFICER
4.1 The issue for decision is whether the complainant was discriminated against on the ground of her gender in relation to access to employment. In making my decision I have taken into account all of the evidence, both written and oral, made to me by the parties.
4.2 In direct evidence at the hearing the MD of the respondent stated that the offer was never withdrawn. When asked why their written submission stated that the offer had been withdrawn he stated that the written submission had been made without legal advice and without consulting Ms A who had left the company on amicable terms before he wrote the submission. He also confirmed in direct evidence that there was no change to the terms of employment.
4.3 During the hearing the respondent submitted the interview notes for the four people who attended for interview on 26 January 2011. These notes were typed and unsigned. They were submitted to show that it was made clear to all candidates that the position was to cover on a temporary basis from 28 February 2011 to 26 September 2011 and to confirm in April 2011 if the maternity leave is extended until 26 January 2012.
4.4 When the job offer was put in writing the commencement date had been changed to 23 February 2011 but the date given to candidates at interview was 28 February. The advertisement was for a six month period and the written offer was for 'a fixed term of 6 months' but the dates advised to all candidates at interview were from 28 February 2011 to 26 September 2011, a period of seven months. The written offer stated: 'You will be expected to work up to 5 days a week. This may vary from week to week and is dependent on the volume of work in progress' but the interview notes for the complainant stated: 'Finds working hours of 4 day week ideal for her family.' The written offer set down specific working hours but nothing about working hours was contained in the interview notes. However, the complainant contends she was told in the interview that flexitime was available. This was later confirmed by the respondent in an email of 16 February which added 'this flexibility is dependent on the demands of the role', furthermore the respondent's written submission confirmed that 'Flexi time is in place for a number of years specifically to help staff cope with working arrangements.'
4.5 Section 8 (5) states: "Without prejudice to the generality of subsection (1), an employer shall be taken to discriminate against an employee or prospective employee in relation to access to employment if the employer discriminates against the employee or prospective employee --
(a) in any arrangements the employer makes for the purpose of deciding to whom employment should be offered, or
(b) by specifying, in respect of one person or class of persons, entry requirements for employment which are not specified in respect of other persons or classes of persons,
where the circumstances in which both such persons or classes would be employed are not materially different.'
In assessing whether the respondent has breached section 8 (5) I have taken into account the inconsistencies and changes outlined above. On the balance of the evidence presented in writing and directly at the hearing I accept the complainant's evidence that after she informed the respondent she was pregnant the initial job offer was verbally withdrawn. I also accept that the offer was reinstated but only after the complainant asked for the reasons for the withdrawal to be put in writing. The written offer set down the formal arrangements and the complainant asked that the less formal arrangements, about hours and days of work, which she contends were discussed at interview be confirmed to her. The respondent could have rung the complainant, as they did when the initial offer was made, and given some reassurance. Instead they replied by email stressing the business needs of the company. Obviously, this is important for any enterprise but in doing so they effectively chose not to confirm the working arrangements which had been discussed at the interview and which the complainant considered were part of the original offer.
4.6 I conclude that the written offer was varied from the original verbal offer and this was done because the respondent was aware that the complainant was pregnant. The variations mean that the respondent changed the 'entry requirements' for the complainant and I conclude that they would not have done this for someone who was not pregnant. This amounts to discrimination in accordance with section 8 (5) of the Acts.
5. DECISION
5.1 I have investigated the above complainant and make the following decision in accordance with section 79 of the Acts that the respondent did discriminate against the complainant in relation to access to employment on the grounds of gender contrary to S.8(1)(a) of the Acts and in accordance with section 82 of those Acts I award the complainant €6,000 for the discriminatory treatment suffered.
5.2 This figure represents compensation for infringement of her rights under equality legislation in relation to discrimination and does not include any element relating to remuneration, and is therefore not taxable.
.
____________________
Hugh Lonsdale
Equality Officer
10 September 2013