EQUALITY OFFICER'S DECISION NO: DEC-E/2014/086
PARTIES
Ms. Bozena Bojanowska
(Represented by O’Hanrahan & Co. Solicitors)
V
Cullen Cleaning Limited
FILE NO: EE/2011/503
DATE OF ISSUE: 15th of December, 2014
1. Dispute
This dispute involves claims by Ms. Bozena Bojanowska that she was discriminated against by Cullen Cleaning Limited, on the grounds of gender, race and family status, in terms of section 6 and contrary to section 8 of the Employment Equality Acts, 1998 and 2008, in relation to getting a job, promotion, training, conditions of employment and other as well as a claim of discriminatory dismissal and victimisation.
2. Background
2.1 The complainant referred a complaint against the above respondent under the Employment Equality Acts 1998 to 2008 to the Equality Tribunal on 20th of June, 2011.
2.2 In accordance with his powers under section 75 of the Employment Equality Acts, 1998-2008 the Director delegated the case on the 18th of March, 2014 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 all parties. As required by section 79(1) of the Acts and, as part of my investigation, I proceeded to a hearing on the 11th of April, 2014.
3. Summary of complainant’s case
3.1 It is submitted that the complainant has been employed by the respondent, since 16th of December, 2008.
3.2 It is submitted that the complainant informed the respondent of her pregnancy in May 2010 and commenced her maternity leave on 12th of July, 2010.
3.3 It is submitted that the complainants maternity leave was due to expire on 1st of January, 2011 and that prior to this date she indicated her desire to return to work.
3.4 It is submitted that the complainant was not facilitated in returning to work until 23rd of February, 2011.
3.5 Following her return to work the complainant’s hours were reduced to about 14 hours per week.
3.6 The complainant sought to be remunerated for the period during which she was out of work waiting to return to work.
3.7 The complainant was issued with a new contract of employment in May 2011. This new contract contained a clause which placed the complainant on probation for 6 months.
3.8 It is submitted that the complainant’s son who also worked for the respondent was dismissed in April 2011 and that this appears to have been a reaction to the Complainant’s dispute with the respondent.
4. Summary of respondent’s case
4.1 It is submitted that the complainant was employed by the respondent as a cleaner since December, 2008.
4.2 It is acknowledged that the complainant commenced her maternity leave in July 2010.
4.3 It is submitted that the complainant following her return from maternity leave was assigned to another store within 5 minutes walk of the previous one.
4.4 The complainant met with the Area Manager and the previous manager on 2nd of August 2011 and at this meeting it was accepted that the complainant could no longer work mornings due to child minding concerns and so was only available for evening work.
4.5 The complainant was transferred to the O’Connell Street store where she worked evenings only as she had requested.
4.6 The complainant did not supply any formal notification of her intention to return from her maternity leave as required under the Maternity Acts. The complainant did request verbally to her Supervisor that she return to work.
4.7 It is submitted that the supervisor in the O’Connell Street store was unaware that the complainant had returned from maternity leave and so issued her with a new contract as he had been instructed to do with all new employees.
4.8 This new contract was issued to the complainant by mistake and had no effect on the complainant’s terms and conditions as she remained governed by her original and continuing contract.
4.9 The HR director wrote to the complainant on 3rd of August, 2011 and advised the complainant that she would be paid for her loss of earnings between her due return date and her actual return date. Ms D issued a cheque to the complainant to cover this loss of earnings.
4.10 The complainant was not dismissed and continued to be employed by the respondent.
4.11 The dismissal of the complainant’s son which took place in April 2011 was in no way related to any issues raised by the complainant who submitted her equality complaint in June 2011. The complainant’s son was dismissed when cleaning hours were cut as he was last in. He was later re employed when another position arose but was terminated due to problems with his standard of work which were brought to his attention but which he failed to address.
5. Findings and Conclusions of the Equality Officer
5.1 Discrimination
5.1.1 The issue for decision by me now is, whether or not, the respondent discriminated against the complainant, on grounds of gender, race and family status in terms of Section 6 and contrary to Section 8 of the Employment Equality Acts, 1998 to 2008 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.
5.1.2 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".
5.1.3 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, family status and race 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,...
(h) that they are of different race, colour, nationality,…”
5.2 Gender-Pregnancy and the special protected period
5.2.1 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]
5.3 Treatment after Maternity Leave
5.3.1 The complainant has submitted that following her maternity leave she was not facilitated in returning to work with the respondent until after she threatened legal action. The complainant advised the hearing that her maternity leave came to an end in January 2011. The complainant stated that she told Ms. W who had been her supervisor prior to her maternity leave that she wished to return to work. The complainant advised the hearing that she told Mr. W this in person and also over the phone, on a number of occasions, prior to the end of her maternity leave. The complainant advised the hearing that she had told Ms. W that she would no longer be able to work mornings, due to her family situation, but that she was available to work evenings. The complainant when questioned at the hearing stated that she did not inform the respondent in writing of her intention to return to work and did not provide them with 4 weeks notice, but that she had asked her manager Ms. W to contact her employer on the complainant’s behalf. The complainant went on to state that by 22nd of February 2011 she had received no information regarding her return to work or whether hours were available and so she asked a friend and colleague Ms. F to contact the respondent and advise them that she was going to take legal action. On 23rd of February, 2011 the complainant’s partner who also worked for the respondent returned from work and told the complainant that she was to return to work the next day in O’Connell Street and was to report to Mr. S. The complainant returned to work the next day on evening hours as she had requested.
5.3.2 The respondent advised the hearing that it was unaware that the complainant wished to return to work in January 2011 following her maternity leave. The respondent advised the hearing that the complainant had not notified them in writing of her intention to return to work following her maternity leave but also stated that there were no formal procedures in place which would oblige a complainant to give such notice. The complainant advised the hearing that she had notified the respondent of her pregnancy in May 2010. She stated that she had informed her supervisor Ms. W verbally and that she had agreed that her maternity leave would start on 12th of July 2010. It emerged at the hearing that the respondent had no formal procedures in place for notification of pregnancy and maternity leave but that a doctor’s note advising of the pregnancy was usually provided to the supervisor as notification. The supervisor in this case was Ms. W and the complainant advised her of her pregnancy in May 2010. The respondent did not dispute this.
5.3.3 The complainant has submitted that the respondent failed to allow her to return to work following her maternity leave. The respondent has submitted that she did not notify them of her intention to return to work and that as soon as they became aware of this fact they provided the complainant with work. The complainant stated that she had notified the respondent via her supervisor Ms. W who had failed to provide her with details of a return date or location. Ms. W was not in attendance at the hearing and the respondent stated that it had been unable to contact her in advance of the hearing as she was travelling in Germany. The respondent at the hearing accepted that the complainant had notified her supervisor Ms. W of her intention to return to work and acknowledged that such a return was only facilitated in February 2011 following a phone call from Ms. F advising them that the complainant was going to take legal action if her return to work was not facilitated. The respondent advised the hearing that there appeared to have been a miscommunication in that they were not aware prior to this, that the complainant wished to return to work. The respondent stated that there were no formal procedures in place for such matters but stated that their supervisors were trained in HR matters and should be able to advise staff of requirements when going on maternity leave. The respondent stated that they were currently investing in HR to ensure there were no more gaps in procedures.
5.3.4 It is clear from the evidence adduced here that the complainant was not facilitated in returning to work following her maternity leave. While the respondent stated that this was due to an error of communication and not due to any malicious intent on the part of the respondent, it is the case that the complainant did not return to work until 23rd of February, 2011 instead of 1st of January 2011 the date on which she had been due to return following her maternity leave and which she signaled to the respondent via her supervisor that she was ready to return to work albeit on evening hours only. I am satisfied from the totality of the evidence adduced in relation to this matter that the complainant was discriminated against by the respondent on grounds of gender in relation to this matter.
5.4 Loss of earnings from Jan-Feb
5.4.1 The complainant has submitted that she was actively seeking to return to work at the end of her maternity leave on 1st of January 2011 but was not permitted to return until 23rd of February, 2011. The complainant advised the hearing that she was not paid for the period during which she was out of work due to the respondent not facilitating her return to work. The respondent advised the hearing that it was very regretful of the fact that the complainant had been out of work for the period in question and stated that this was due to a breakdown in communication. The respondent stated that they had since compensated the complainant for the time she had been out of work i.e. the period from 1 January 2011 to 23 February, 2011. The complainant advised the hearing that she had in July 2011, five months after her return to work and following her submission of a complaint to the Equality Tribunal, been offered payment by the respondent for the period she had been out of work. This had been presented to her with a note which she was asked to sign, the complaint stated that she did not fully understand it and so had refused to sign it. The complainant went on to state that this had been presented to her by Ms. D and that she had asked Ms. D if she could take the note home with her before signing it but was told that she could not. The complainant submitted that she considered that she had, by refusing to sign the note, refused the offer of the compensation.
5.4.2 The respondent advised the hearing that the money had in any event been paid to the complainant into her account and had been paid to her with her wages, the respondent stated that it had been indicated as holiday pay in the relevant pay slip. The complainant stated that she had assumed that the sum referred to, which was indicated as holiday pay on the pay slip in question was in fact holiday pay. It was also submitted that the sum of money in question was in fact payment for holidays accrued by the complainant in 2010 and 2011. The respondent couldn’t say with any certainty whether the payment in question was in fact the amount offered as compensation for the complainant’s time out of work or her accrued holiday pay. On closer examination it is clear that the sum referred to, €726.75 which appears on the complainant’s pay slip at end July 2011 correlates to 76.5 hours holidays which are referred to in a letter dated 5th of July 2011 from the respondent to the complainant as the complainant’s outstanding holidays from 2010. It would thus appear that the matching payment of €726.75 made at end July was in fact holiday pay and not a payment if compensation for the time the complainant was out of work. I am thus satisfied from the evidence adduced that the complainant refused the offer of compensation made by the respondent and that it the payment which was made at end of July was in respect of accrued holiday pay. It is not incumbent on me to make a finding in respect of this aspect of the claim but I may take it into consideration when deciding on the quantum to be awarded.
5.5 Claim re Reduction in hours
5.5.1 The complainant advised the hearing that her hours were reduced following her return from maternity leave in February 2011 and that this amounts to discrimination on grounds of gender. The respondent has conceded that the complainant’s hours were reduced following her return from maternity leave, but advised the hearing that this was due to the complainant’s request, to work evenings only as she was no longer able to work mornings due to her family. The complainant conceded that she had advised the respondent that she was no longer available to work mornings. The complainant at the hearing provided details of the number of hours she worked before and after her maternity leave. It is apparent from the information provided by the complainant on the hours worked, that her hours after maternity leave were the same as before her maternity leave taking into account the fact that she could no longer work morning hours, as per her request. I am thus satisfied from the totality of the evidence adduced in relation to this matter that the complainant was not discriminated against by the respondent in relation to this matter.
5.6 Claim re Dismissal and New Contract
5.6.1 The complainant advised the hearing that she returned to work in February 2011, and was employed to work in Penney’s in O’Connell Street where her supervisor was now Mr. S. The complainant advised the hearing that Mr. S had in May 2011 issued her with a new contract containing new terms and conditions of employment. The complainant stated that Mr. S advised staff that these contracts were being issued by order of Ms. D and that all staff were to sign them. The complainant stated that she had signed this contract as she thought she had no choice but to sign it. It is submitted that this new contract contained a clause imposing a 6 months probationary period on all new employees. The complainant advised the hearing that she had questioned Mr. S about the new contract and that he had at the time told her that this new contract meant that he could fire her within a year if he wanted to. The respondent advised the hearing that Mr. S had been instructed to issue the new contracts in question to all new staff. The respondent stated that Mr. S issued the contract to the complainant in error, as he had assumed she was also a new staff member as she had prior to her maternity leave worked in a different store and had not previously worked with Mr. S. The complainant stated that she had met Mr. S prior to her maternity leave however I am not satisfied that having met Mr. S prior to her maternity leave is sufficient for him to conclude that she should not be issued with the new contract as per the instructions he had received from Ms. D to issue them to all staff in that store. The respondent stated that this new contract had been issued to the complainant in error and that it had no material effect on her terms and conditions of employment as she was still governed by her existing and continuing contract. The complainant at the hearing did not dispute that the issuing of the new contract had no actual effect on her conditions of employment. I am thus satisfied from the totality of the evidence adduced in relation to this matter that the complainant was not discriminated against by the respondent in relation to this matter.
5.7 Dismissal
5.7.1 It is submitted on behalf of the complainant that the issuing of a new contract to her amounts to a dismissal and re-engagement. The complainant produced no evidence at the hearing to substantiate the claim that she was subjected to a dismissal. The respondent submits that there was no break in the complainant’s employment or service and that she continued to be governed by her existing contract. The respondent also stated that no p45 was ever issued and that there is no evidence to suggest that the complainant’s employment was ever terminated. I am thus satisfied from the totality of the evidence adduced in relation to this matter that the complainant was not discriminated against by the respondent in relation to this matter.
5.8 Claims on grounds of Race and Family status
5.8.1 The complainant has submitted claims on grounds of race and family status but produced no evidence at the hearing to substantiate these claims. Thus I am satisfied that the complainant was not discriminated against on grounds of race or family status by the respondent.
5.9 Victimisation
5.9.1 The complainant submitted that her son was dismissed from the respondent’s employment in April 2011 and that this amounts to victimisation following her attempt to assert her rights.
Section 74(2) of the Employment Equality Acts, 1998-2011 defines victimisation as follows:
“For the purposes of this Part victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to –
(a) a complaint of discrimination made by the employee to the employer………….
(f) an employee having opposed by lawful means and act which is unlawful under this Act…….
(g) an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs”
5.9.2 In Tom Barrett v Department of Defence[6] the Labour Court set out the three components which must be present for a claim of victimisation under section 74(2) of the Acts to be made out. It stated that (i) the complainant must have taken action of a type referred to at paragraphs (a)-(g) of section 74(2) – what it terms a protected act, (ii) the complainant must be subjected to adverse treatment by his/her employer and (iii) the adverse treatment must be in reaction to the protected act having been taken by the complainant.
(i) The complainant, in identifying the protected act, referred to her threat in February 2011 to take legal action if she was not facilitated in returning to work following her maternity leave. I am satisfied that the complainant’s threat of legal action against the respondent in February 2011 amounts to a protected Act for the purpose of this Section.
(ii) The complainant in identifying the adverse treatment referred to the fact that her son who was also employed by the respondent, was dismissed in April, 2011. The complainant submits that this had a negative effect on the complainant’s overall financial position. I am not satisfied that the dismissal of the complainant’s son amounts to adverse treatment of the complainant by the respondent. In addition I am not satisfied that evidence has been adduced to substantiate the claim that the dismissal of the complainant’s son was in any way linked to the complainant’s threat to take legal action against the respondent. I am thus satisfied from the totality of the evidence adduced here that the complainant was not victimised by the respondent 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 that-
(i) the complainant was discriminated against by the respondent on grounds of her gender in terms of section 6(2) of the Employment Equality Acts, 1998 -2008 and contrary to section 8 of those Acts in relation to the failure to facilitate her return to work following her maternity leave
(ii) The complainant was not discriminated against by the respondent 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 relation to the provision of a new contract
(iii) The complainant was not discriminated against by the respondent 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 relation to an alleged dismissal
(iv) The complainant was not discriminated against by the respondent 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 relation to a reduction in her hours following her maternity leave
(v) the complainant was not discriminated against by the respondent on grounds of race and/or family status in terms of section 6(2) of the Employment Equality Acts, 1998 -2008 and contrary to section 8 of those Acts
(vi) the complainant was not victimised by the respondent
6.2 Section 82 of the Employment Equality Acts, 1998 to 2008 provides that I can make an order for the effects of the discrimination. In considering the redress in this case, I have to be aware that any award for compensation should be proportionate, effective and dissuasive. In making my award, I am mindful of the fact that the respondent, in this case, left the complainant without work or pay for a period of almost 2 months following her maternity leave. The complainant was not paid for this 2 month period. The complainant was facilitated in returning to work and to working hours which she had requested, once the respondent was notified that she was seeking to return to work and would be contacting a solicitor if such a return was not facilitated. The respondent acknowledges that the complainant was left without work for the stated time period and accepts that she may have requested an earlier return to work through her supervisor Ms. W but states that this was not communicated to them. In making my award I am mindful of the fact that the complainant was not paid for the period of almost 2 months during which she was out of work. I am also mindful of the fact that the complainant was returned to work in February 2011 and is still employed by the respondent.
6.3 Having taken the foregoing matters into consideration and having regard to the rate of remuneration which the complainant was in receipt of at the relevant time, I consider an award of compensation in the sum of €4,000 to be just and equitable.
6.4 Therefore, in accordance with S. 82 of the Employment Equality Acts 1998 to 2008, I order that the respondent pay the complainant €4,000 in compensation for her discriminatory treatment. This award is in compensation for the distress experienced by the complainant in relation to the above matters, and is not in the nature of pay, and therefore not subject to tax.
____________________
Orla Jones
Equality Officer
15th of December, 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
[6] EDA1017