P14/2012

EMPLOYMENT APPEALS TRIBUNAL

APPEAL(S) OF:                                                                                                        CASE NO.

Mary Gilman Bennett - appellant                                                                             P14/2012

against the recommendation of the Rights Commissioner in the case of:

Elaine Byrne

T/A Elaine Byrne's Health & Beauty Clinic - respondent

under

MATERNITY PROTECTION ACT 1994 AND 2004

I certify that the Tribunal

(Division of Tribunal)

Chairman:   Ms P. McGrath B.L.

Members:     Mr C. McHugh

                    Mr. J. Dorney

heard this appeal at Dublin on 28th February 2014

Representation:

Appellant(s) : William Egan & Associates, Solicitors,

           Malt House Square, Bow Street, Smithfield, Dublin 7

Respondent(s) : Mr Eamonn Carey, Walter A Smithwick & Son, Solicitors,

43 Parliament Street, Kilkenny

The decision of the Tribunal was as follows:-

This case came before the Tribunal by way of the employee appealing the decision of a Rights Commissioner reference – R-122518-MP-12/JW.

Determination

The Tribunal has carefully considered the evidence adduced in the course of this hearing and in particular the evidence of the appellant herself and the respondent employer. In addition, the Tribunal has considered the oral and written submissions presented by the legal representatives.

This matter comes before the Tribunal on foot of an appeal by the employee from the Rights Commissioners finding of the 7 November 2012 and relates to a claim under the Maternity Protection Act 1994 and the Maternity Protection (Amendment) Act 2004.

The appellant commenced her employment with the respondent beauty salon in and around August 2011. The appellant was recruited as a general manager with an annual salary of €35,000.00. The evidence given was that the general manager was taken on to allow the two owners who are sisters an opportunity to step back from the day to day administration, management and organisation and instead concentrate on the therapy side of the business.

At the beginning of December 2011 the appellant notified the respondent that she was three months pregnant and in light of this the appellant was called in to a meeting on the 9 December 2011 for the purpose of completing a risk assessment for the appellant pursuant to the respondent’s obligation under the Health and Safety legislation.

The risk assessment form outlined a number of areas wherein lifting and carrying duties were seen as a potential risk and should therefore be carried out by an alternative person.

The Tribunal find that the risk assessment form opened in evidence to it tended to suggest that the employer demonstrates a correct degree of caution in relation to a number of light duties which the general manager would occasionally be expected to perform. The assessment recognises that some other member of staff would have to step in and assist in the lifting and carrying of deliveries, furniture and stocks so as to avoid any adverse effect to the appellant and her baby.

The evidence confirmed that at no point in the course of this meeting was it suggested to the appellant who was pregnant with her first baby that she may have to take leave from her employment nor did the fact of her pregnancy give rise to health and safety concerns.

The appellant’s evidence was that the issues raised by the respondent formed a miniscule portion of her working week and the appellant’s duties as opened to the Tribunal gives credence to the assertion that the general manager’s role was in administration, accounting, sales and marketing. On balance the Tribunal accepts that those incidents of lifting and carrying and the re-stocking of shelves which were referenced in the risk assessment form were not pivotal to the appellant’s role. It therefore is accepted by the Tribunal that the appellant left the meeting on the 9^th of December happy that the employer had identified a number of areas which would require caution and assistance and the evidence to the Tribunal was that at any time there were up to six or seven employees on the premises which would imply assistance would always be available in the course of the working day.

The respondent’s evidence was that over the next few days she reflected on the appellant’s position within the business and that she became increasingly concerned that the appellant’s health and safety would be at risk if she continued on in the workplace for the remainder of her pregnancy. The respondent cited incidents of coming across the appellant using a step ladder and moving a table as having heightened her concern though neither of these incidents in fact amounted to anything significant.

On the 13 December the respondent again met with the appellant and indicated that pursuant to section 18 of the Maternity Protection Act 1994 the appellant was being put on health and safety leave for the remainder of the pregnancy. There is no evidence to support that anything had occurred between the 9 and 13 of December which had turned an almost innocuous risk assessment into a situation of great hazard.

The Tribunal cannot accept that any objective view of the appellant’s job description and of the workplace in question could give rise to the necessity of putting this employee on health and safety leave. The appellant herself gave evidence of a normal healthy pregnancy and of a willingness to continue working in the normal way subject to a number of minor duties of a physical nature with which she might require assistance from time to time.

The Tribunal accepts that health and safety leave should be seen as the last resort and should only be considered where no other compromise can be reached. The risks raised by the employer herein were so incidental to the appellant’s employment that they could have been accommodated with ease as and when they arose. Indeed in her evidence the respondent indicated that she and her sister completed all of the appellant’s duties in her absence which demonstrated that from within the workplace the risks identified would not have been insurmountable to the appellant with a little help from co-workers.

There was an onus on the employer as far as practicable to retain the appellant in her employment during her pregnancy. The appellant wisely made it very clear she wanted to stay and had no wish to use her pregnancy as an excuse to under perform. There was no dialogue between the parties, or compromise reached or solution or guidelines worked out.

On balance, the Tribunal accepts that the respondent breached her obligation as an employer as set out in section 18 of the Maternity Protection Act 1994 and the appeal succeeds. In light of this the Tribunal award the sum of €9,701.40 being the remuneration lost to the appellant for the twenty weeks work she was out on leave.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)