DEC-E2014-028

DECISION NO: DEC-E/2014/028

PARTIES

Ms. Malgorzata Szymanska

(Represented by O’Hanrahan & Co. Solicitors )

Vs

Beaumex

(Represented by Wendy Doyle Solicitors)

FILE NO: EE/2011/576

Date of issue: 15th of April, 2014

1. Dispute

1.1 This dispute involves a claim by Ms. Malgorzata Szymanska against Beaumex that she was discriminated against on grounds of gender, race, family status and disability in terms of section 6 of the Employment Equality Acts, 1998 to 2008 and contrary to section 8 of those Acts, in relation to her conditions of employment and other. There is also a complaint of harassment and of discriminatory dismissal.

2. Background

2.1 The complainant referred a complaint under the Employment Equality Acts 1998 to 2008 to the Equality Tribunal on the 5th of August, 2011 alleging that the respondent had discriminated against her on grounds of gender and family status when she was subjected to a pay cut following the announcement of her pregnancy and when she was refused lighter work during her pregnancy and was forced work overtime both during and after her pregnancy. Complaints on grounds of race and disability were also submitted but were withdrawn at the hearing. Complaints of harassment and of discriminatory dismissal had also been submitted but were not pursued at the hearing.

2.3 In accordance with his powers under section 75 of the Employment Equality Acts, 1998-2008 the Director delegated the case on 20th of September, 2013 to me, Orla Jones, 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. Written submissions were received from both parties. As required by Section 79(1) of the Acts and as part of my investigation I proceeded to a Hearing on the 18th of October, 2013. Final correspondence in relation to this matter took place on 13th of January, 2014.

3. Summary of complainant’s case

3.1 The complainant submits that she was employed by the respondent as a warehouse operative from 22nd of October 2007 to 4th of July 2011.

3.2 It is submitted that the complainant informed the respondent of her pregnancy on 5th of January, 2010.

3.3 On or about 8th of January, 2010 the complainant and others were advised of a 10% pay cut. Employees were advised that this was a temporary pay cut. The 10% pay cut on the complainant’s salary continued following her return from maternity leave.

3.4 The complainant following the announcement of her pregnancy was not permitted to work in a non-labour intensive role during her pregnancy and instead was forced to take health and safety leave.

3.5 The respondent insisted that the complainant work overtime both before and after her pregnancy.

3.6 The complainant following her return to work after her maternity leave was forced to work overtime despite the fact that she needed to get home to her child. She was placed on overtime when others without such commitments were available to do the task.

3.7 The complainant requested but was refused an early finish to facilitate breast feeding.

3.8 It is submitted that the complainant could not work overtime as it was unpaid and so she was unable to pay for additional childcare which working overtime necessitated.

3.9 The complainant was subjected to the respondent’s disciplinary procedure due to her refusal to work overtime.

3.10 The complainant wrote to the respondent on 28 of June 2011 stating that she was unable to work unpaid overtime and stating that she was contemplating her resignation due to the fact that her grievances were not being addressed.

3.11 The respondent replied to this letter on 30th of June 2011 clarifying whether it was still her intention to resign. The complainant was issued with her p45 a few days later.

4. Summary of Respondent’s case

4.1 It is submitted that the complainant was employed by the respondent, as a warehouse operative from 22nd of October 2007 to 4th of July 2011.

4.2 On or about 8th of January, 2010 all staff were notified of a 10% pay cut across the board. The respondent had also made 18 redundancies within the year in question.

4.3 The complainant notified the respondent of her pregnancy on 8th of February, 2010. Following this the complainant stated that she would not be working any more overtime.

4.4 The complaint on 12th of February 2010 applied for and was granted Health and Safety leave for the remainder of her pregnancy.

4.5 The complainant returned from maternity leave in March 2011 and requested and was granted daily breast feeding breaks.

4.6 The complainant following her maternity leave refused to work overtime despite the fact that all staff are required by contract to undertake a certain amount of overtime

4.7 The complainant indicated on 28th of June 2011 that she wished to resign. The respondent on 4th of July issued the complainant with her p45 and her payslips.

5. Conclusions of the Equality Officer

5.1 The complainant at the hearing withdrew the claims in relation to discriminatory treatment on grounds of race, and disability and in relation to discriminatory dismissal. Complaints of harassment and of discriminatory dismissal had also been submitted but were not pursued at the hearing.

The issue for decision by me now is, whether or not, the respondent discriminated against the complainant, on grounds of gender and family status in terms of Section 6 and contrary to Section 8 of the Employment Equality Acts, 1998 to 2008, in relation to her treatment during and after her pregnancy. In reaching my Decision I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence at the Hearing.

5.2 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. If she succeeds in doing so, then, and only then, is it for the respondent to prove the contrary. The Labour Court elaborated on the interpretation of section 85A in Melbury v. Valpeters EDA/0917 where it stated that 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".

5.3 Section 6(1) of the Employment Equality Acts, 1998 to 2008 provides that discrimination shall be taken to occur where “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)…..” Sections 6(2)(a)(b) and (c) of the Acts define the discriminatory grounds of gender and family status as follows – “as between any 2 persons, ............ (a) that one is a woman and the other is a man,..

(c) that one has a family and the other does not "...

5.4 Gender-Pregnancy and the special protected period

5.4.1 The entire period of pregnancy and maternity leave constitutes a special, protected period as outlined in the Court of Justice of the European Union Decisions in Webb v EMO Air Cargo (UK) Ltd[1] Brown v Rentokil Ltd[2] and Dekker v Stichting Vormingscentrum[3]. The Labour Court in Trailer Care Holdings Ltd Vs Deborah Healy[4] referred to the fact that “the jurisprudential principle that discrimination on grounds of pregnancy constitutes direct discrimination on grounds of sex is now codified in Directive 2006/54/EC on the Principle of Equal Treatment of Men and Women (the Recast Directive). This Directive provides, at Article 2. 2 (c), thatany less favourable treatment of a woman related to pregnancy or maternity leave within the meaning of Directive 92/85/EEC constitutes unlawful discrimination for the purpose of that Directive”. Futhermore it refers specifically to Dekker v Stichting Vormingscentrum and the fact that “theCourt of Justice of the European Union (formally the ECJ) has made it clear that since pregnancy is a uniquely female condition any adverse treatment of a woman on grounds of pregnancy is direct discrimination on ground of her sex. Thus, the law of the European Union recognises the reality that to treat a woman less favourably because she is pregnant is to discriminate against her because she is a woman. That can never be justified. Issues such as disruption caused to an employer’s business or costs associated with accommodating a pregnant woman in employment are, as a matter of Union law, wholly irrelevant”[5]

5.5 Treatment during pregnancy and following maternity leave

5.5.1 The complainant has submitted that she was discriminated against by the respondent on grounds of gender following the announcement of her pregnancy in relation to a reduction in her salary and in relation to being forced to work overtime. She has also submitted that she was refused lighter work during her pregnancy and forced to take Health and Safety leave. The complainant has further submitted that following her maternity leave she was discriminated against by the respondent on grounds of gender and family status in relation to a reduction in her salary and in relation to being forced to work overtime and has also submitted that she requested and was refused breast feeding breaks on her return to work.

5.6 Reduction in salary

5.6.1 The complainant prior to the hearing had submitted that she had notified the respondent of her pregnancy on 5th of January, 2010 and that she and other members of staff were advised by the respondent on 8th of January, 2010 of a 10% pay cut in her salary. The complainant had initially submitted that the reduction in salary had occurred following her notifying the respondent of her pregnancy. It emerged at the hearing that the complainant had not in fact notified the respondent of her pregnancy in January 2010 as stated in her submission (i.e. prior to the salary cut) but had in fact advised them of her pregnancy on 8th of February, 2010. The complainant advised the hearing that she had notified the respondent of her pregnancy on 8th of February, 2010. The complainant stated that she and other staff members had been advised by the respondent on 8th of January, 2010 that they were to receive a 10% reduction in salary. The complainant stated that this was notified to all staff via a meeting where the respondent had made the announcement to all staff. The respondent advised the hearing that this decision had to be made due to a downturn in the business and a reduction in the company’s turnover and added that it had been forced to terminate the employment of 18 workers in the preceding period. The respondent stated that an information document in relation to the pay cut was prepared for all staff and that copies of this document were left on the table of the boardroom where the pay cut was announced and staff were directed to take one. A notice was also placed in the staff canteen. The complainant at the hearing did not dispute this but stated that she had been under the impression that such a pay cut was to be temporary and for a period of a few months only.

5.6.2 The complainant has submitted that she continued to be subjected to this pay cut following her return from maternity leave despite reassurances that such salary cut was only temporary in nature. The complainant at the hearing stated that the continuance of this salary reduction on her return to work following her maternity leave amounted to discrimination on grounds of gender and family status. The respondent advised the hearing that it had hoped that this pay cut would be temporary but that it had never given a timescale for the duration of same as it would have been impossible to predict if and when there would be an improvement in business. The respondent stated that things did not improve and so pay cuts across the board were still in place for all staff when the complainant returned from maternity leave. The respondent stated that the complainant remained on the same salary before and after the announcement of her pregnancy and that the salary cut announced in January 2010 had applied equally to all staff and continued to be applied to all staff before, during and after the complainant’s pregnancy. Thus it is clear from the evidence adduced here that the salary cut applied to the complainant was applied before the announcement of her pregnancy and continued after her return from maternity leave for the complainant and for all staff. Thus the complainant was treated no differently to any other staff member in relation to this matter and did not experience any less favourable treatment in relation to her continued salary reduction following her return to work after her maternity leave. Accordingly I am satisfied that the complainant was not discriminated against on grounds of gender or family status in relation to this matter.

5.7 Refused Light work

5.7.1 The complainant advised the hearing that she had notified the respondent of her pregnancy on 8th of February, 2010 and stated that following this notification she had requested a move to lighter work but had been refused. The complainant advised the hearing that her day to day work involved picking and packing CD’s in the respondent’s downstairs warehouse. She advised the hearing that her day to day job involved a lot of standing. The complainant at the hearing stated that, the day after announcing her pregnancy a number of staff were deployed to undertake a job in the upstairs warehouse. The complainant advised the hearing that this job in the upstairs warehouse was a much easier job, in that you could sit down wherever, you wanted to, on the floor while counting and packing CD’s. The complainant stated that this was an easier job and advised the hearing that she had asked the respondent if she could do this job the following day but stated that she had been refused and instead other members of staff were sent up to the upstairs warehouse while she was left in the downstairs warehouse.

5.7.2 The respondent advised the hearing that it had refused the complainant’s request to work in the upstairs warehouse as it was considered unsafe and unsuitable work for a pregnant woman. The respondent stated that the upstairs warehouse was not kitted out as well as the downstairs warehouse was (photographs presented to hearing) and stated that there were piles of 50-100 CD’s piled up in boxes in random heaps around the floor, the respondent acknowledged that staff could sit down on the floor doing this job but stated that it was unsafe to do so and that it would be particularly unsafe for a pregnant woman to sit on the floor in between piles of CD’s which could fall on her. The respondent advised the hearing that it had following the complainant’s request performed a risk assessment on the upstairs warehouse and had concluded that the conditions there were not safe for a pregnant employee. The respondent stated that the downstairs warehouse had previously undergone a risk assessment when another employee had advised of her pregnancy and on that occasion a full and extensive risk assessment had been carried out on the downstairs warehouse by external auditors ‘Event Medical’ and that it had been deemed suitably safe for a pregnant employee. The job performed by that employee in the downstairs warehouse was the same as the job performed by the complainant. The complainant at the hearing did not dispute these facts or that the upstairs warehouse did contain piles of CD’s in boxes which could fall over.

5.7.3 The respondent advised the hearing that it had following notification of the complainant’s pregnancy walked her through the downstairs warehouse and advised her against certain activities such as lifting heavy boxes while pregnant. The complainant at the hearing stated agreed that the respondent had warned her not to lift any heavy boxes while pregnant. The respondent also advised the hearing that following its risk assessment of the upstairs warehouse the complainant had been advised that it was unsafe for a pregnant employee to work in the upstairs warehouse but stated that the complainant had disagreed with this. The complainant at the hearing stated that in her opinion the work in the upstairs warehouse was easier for a pregnant woman. The complainant went on to state that she was very worried that the work she was doing in the downstairs warehouse was unsafe and that she had gone home that evening and discussed her worries with her husband and added that they had then ‘looked up’ Health and Safety leave. I am satisfied based on the totality of evidence adduced here that the respondent’s decision to refuse to allow the complainant to work in the upstairs warehouse and to continue working in the downstairs warehouse was due to considerations for the safety of a pregnant employee and was based on a risk assessment of both jobs. Accordingly I am satisfied that the complainant was not discriminated against on grounds of gender in relation to the refusal to permit her to work in the upstairs warehouse in what she considered to be light work.

Forced to go on Health and Safety leave

5.7.4 The complainant had submitted that she was forced to go on Health and Safety leave due to the fact that there was no light work available to her during her pregnancy. The respondent advised the hearing that there was no alternative work available for the complainant but stated that her current role was perfectly safe and had previously been carried out by a pregnant employee in accordance with the risk assessment carried out by Event Medical. The complainant when questioned at the hearing, couldn’t recall if she had seen the risk assessment document but stated that she had been advised by the respondent not to lift any heavy boxes while pregnant. Witness for the respondent Mr. M stated that the complainant had on 11th of February 2010 produced to the respondent, print outs of information in relation to Health and Safety leave and had requested that she be placed on such leave for the duration of her pregnancy. The respondent stated that it didn’t think it was necessary but decided to grant the complainant the leave in accordance with her wishes. The complainant advised the hearing that she had wanted to go on Health and Safety leave due to her worries about her safety during her pregnancy. Accordingly I am satisfied based on the totality of the evidence adduced her that the complainant was not discriminated against on grounds of gender in relation to Health and Safety Leave.

5.8 Forced to work overtime

5.8.1 The complainant advised the hearing that she was forced to work overtime during and after her pregnancy. The complainant at the hearing conceded that she was from time to time required to work overtime as part of her contract however, she advised the hearing that she had following the announcement of her pregnancy expected that she would no longer have to do overtime. She advised the hearing that she had refused to work overtime due to her pregnancy and had as a result of this been subjected to the respondent’s disciplinary procedure. The respondent advised the hearing that it was a contractual requirement of all staff to work a certain amount of overtime when necessary including one hour of overtime every Monday evening until 7pm. The respondent advised the hearing that the complainant had refused to do any overtime following the announcement of her pregnancy and had been advised that such refusal would lead to disciplinary procedures.

5.8.2 The complainant advised the hearing that she had on her return from maternity leave advised the respondent that she could not work overtime as she had no one to mind her child due to the fact that her husband worked in the evenings. The respondent advised the hearing that the complainant had a few days after her return to work requested and been granted a month’s annual leave to facilitate her with arranging proper child care. The complainant stated that as the overtime was unpaid she could not afford to pay someone to look after her child while she worked overtime and her husband went to his night job. The complainant stated that she was the only female required to work overtime as the only other female employee Ms. K was not forced to do overtime since the birth of her child. The respondent advised the hearing that the husband of the other female was also employed by the respondent and stated that she did not have to work the overtime as her husband worked the overtime instead when it was her turn to do so. The complainant has submitted that this amounts to discrimination on grounds of family status and gender. The respondent advised the hearing that all staff irrespective of family status or gender are required as per their contracts to work a certain amount of unpaid overtime. The respondent added that staff get time off in lieu of pay for any additional overtime worked. The respondent stated that for most of the year this amounts to an extra hour once a week. The respondent advised the hearing that the complainant stated that she could not work overtime due to the fact that her husband starts work at 7 pm. The respondent stated that it could not except the complainant from her contractual requirement due to her husband’s work. The respondent stated that the only person exempted from the overtime requirement is Ms. K and that this is due to the fact that her husband works the overtime for both of them. The complainant did not dispute this at the hearing. The complainant had submitted that the requirement for her to work overtime during and after her pregnancy amounts to discrimination on grounds of gender and family status. The complainant advised the hearing that Ms. K who is also female and a parent was not required to work overtime following the birth of her child. I am satisfied from the totality of the evidence adduced here that the requirement to work overtime was not in any way related to the complainant’s gender or family status. Accordingly I am satisfied that the complainant was not discriminated against on grounds of gender or family status in relation to the requirement to work overtime during her pregnancy and following her return to work after maternity leave.

5.8.3 The complainant also advised the hearing that she was subjected to the respondent’s disciplinary procedure due to her failure to work overtime. The complainant at the hearing stated that she had on a number of occasions refused to work overtime during and after her pregnancy. The respondent advised the hearing that staff members can be accommodated when they specifically request not to do overtime on a particular occasion for a given reason then they can be excused from overtime on that occasion. The respondent stated that the complainant did not make any specific requests just blanket refusals to do overtime. It emerged at the hearing that complainant had on occasion refused to work overtime and had just gone home instead despite being told that such actions would lead to disciplinary procedures. The respondent advised the hearing that the Company disciplinary procedures are referred to in the complainant’s contract (submitted to the hearing) and are set out in detail in the Company handbook which is available and accessible to all staff. The complainant at the hearing did not dispute this merely commenting that the handbook was not in very good condition and was dirty. The complainant at the hearing agreed that she was aware of her contractual obligation to work overtime and that she had on a number of occasions been advised that her refusals to work overtime would lead to disciplinary action however she stated that she should not have to work unpaid overtime following the birth of her child and given that her husband worked nights. The respondent stated that the complainant had on 18th of May 2011 been rostered to work until 7pm. She had been advised of this in advance at the weekly planning meeting on Monday 16th of May. The complainant was again informed of this at 3.30pm on the day in question. The complainant on the day in question clocked out and went home at 6pm instead of 7pm and refused to work the overtime for which she had been scheduled. The respondent stated that the complainant gave no reason for her refusal other than to say “I do not work late anymore”. The complainant agreed that this had happened and that she had at the time been advised by the respondent that leaving at that time would lead to disciplinary action. Following this incident the respondent had initiated disciplinary procedures against the complainant and following a disciplinary meeting on the matter had issued the complainant with a first written warning on 30th of June 2011. I have examined the evidence of both parties, both written and oral, in relation to this matter, and from the totality of the evidence adduced, I am satisfied that the initiation of disciplinary procedures by the respondent in relation this matter does not amount to discrimination of the complainant on grounds of gender or family status.

5.9 Breast feeding breaks

5.9.1 The complainant advised the hearing that she was due to return to work following her maternity leave on 28th of March, 2011. She advised the hearing that she had contacted the respondent by email on 20th of March, 2011 prior to her return to work in order to request that she be permitted to finish work at 5pm instead of 6pm for 2 weeks in order to facilitate breast feeding. The complainant has submitted that this request was refused and that this amounts to discrimination on grounds of gender and family status. The complainant stated that the respondent refused to allow her to finish at 5 and instead suggested that she take the breaks either in the morning or at lunchtime or that she could use up her holidays from the previous year. The respondent at the hearing stated that the breaks requested were not refused but that three alternative options were suggested in relation to the time at which the complainant could take these breaks. The respondent stated that this was due to the fact that the time suggested by the complainant for taking these breaks, 5pm, was not convenient as the busiest part of the day is between 4 and 6 when the staff have to ensure all items are ready packed and ready for transport from the premises. The respondent added that it offered the complainant the following options

• Start work at 10 am instead of 9 am
• Take an extra hour at lunch time i.e. from 1.15pm to 3pm (usually 1.15 to 2), or
• Take 2 weeks holidays which she had left from the previous year

5.9.2 The complainant at the hearing stated that she opted for the extended lunchtime but stated that this wasn’t ideal for her. She also questioned the fact that the respondent could do without her for 2 full weeks if she availed of holidays but could not allow her to finish at 5 during the same period. The respondent stated that it would bring in a temporary replacement to cover the complainant’s holidays if she chose that option as it had in the past brought in replacements for such occasions. The complainant did not dispute this at the hearing.

Accordingly I am satisfied from the totality of the evidence adduced in relation to this matter that the complainant was not discriminated against or harassed on grounds of gender or family status in relation to this matter.

6. DECISION OF THE EQUALITY OFFICER

6.1 I have completed my investigation of this complaint and in accordance with section 79(6) of the Employment Equality Acts, 1998-2008 I issue the following decision. I find -

(i) that the respondent did not discriminate against the complainant on grounds of gender in terms of section 6(2) of the Employment Equality Acts, 1998 -2008 and contrary to section 8 of those Acts in respect of the following matters

· her alleged treatment following the announcement of her pregnancy specifically in relation to

– a 10% reduction in salary

– a requirement to work overtime

– the failure to provide her with alternative work

– her Health and Safety leave

(ii) that the respondent did not discriminate against the complainant on grounds of gender and family status in terms of section 6(2) of the Employment Equality Acts, 1998 -2008 and contrary to section 8 of those Acts in respect of the following matters

· her alleged treatment following her return to work after her maternity leave specifically in relation to

– a 10% reduction in salary

– a requirement to work overtime and subsequent disciplinary action

– breast feeding breaks

____________________

Orla Jones

Equality Officer

15th of April, 2014

Footnotes:

[1] [1994] ECR 1-3567

[2] [1998] ECR 1-04185

[3] [1990] ECR 1-3941

[4] EDA No 128

[5] [1990] ECR 1-3941