The Equality Tribunal
EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E2014-094
PARTIES
Tatjana Kajina
(Represented by Tiernan Lowey B.L. instructed by MS Solicitors.)
AND
Grosvenor Cleaning Services
(Represented by IBEC)
File reference: EE/2011/376
Date of issue: 22 December 2014
1. DISPUTE
This dispute involves a claim by Ms. Tatjana Kajine (hereafter called "the complainant") that she was discriminated against by Grosvenor Cleaning Services (hereafter called "the respondent") on grounds of gender, family status, and race, in terms of section 6 of the Employment Equality Acts, 1998-2011 and contrary to section 8 of the Acts in relation to conditions of employment. The complainant also claims that she was victimised by the respondent in terms of Section 74(2) of the Acts.
2. BACKGROUND
The complainant referred a complaint under the Employment Equality Acts, 1998 and 2011 to the Equality Tribunal on 5 April 2011. On the 2nd May 2013, in accordance with his powers under the Acts the Director delegated the complaint to me, Mr. Peter Healy, an Equality Officer for investigation and decision and for the exercise of other relevant functions under Part VII of the Acts. Submissions were received from both parties and a hearing of the complaint took place on 15 November 2013.
3. SUMMARY OF COMPLAINANT'S CASE
3.1 The complainant who is a Latvian National commenced employment with the respondent as a cleaning operative in April 2009. The complainant states that she normally worked five and a half hours per day (three hours in the sports area and two and a half hours in a residential area) cleaning at a University campus. In August 2010, the complainant returned to work after what she says was a sanctioned eight week absence. On return, she submits that she discovered that she was not rostered for work and was informed by the respondent that she was dismissed due to the length of her absence. A week and a half passed before she was rostered for work again and she resumed employment.
3.2 The complainant submits that in September 2010 she formally notified the respondent that she was pregnant. She submits that at this time she raised a number of health and safety concerns arising out of her employment and requested that a change to her place of work on the campus that would allow less strenuous work and safer conditions. Specifically the complainant raised concerns about using a buffer machine and exposure to noxious chemicals. Furthermore the complainant submits that she expressed concerns about the lack of protective clothing and other work gear.
3.3 The complainant submits that the respondent never carried out a risk assessment of the complainant’s working conditions and that her hours were reduced in September to two and a half hours per day. The complainant also submits that following her notification of pregnancy that the respondent would change her hours without advance notification. Specifically, the complainant submits that the respondent reduced her hours in September 2010.
3.4 The complainant submits that in November 2010 she was required to go on pregnancy related sick leave during which time she was not paid. The complainant commenced sick leave in February 2011.
3.5 The complainant submits that she had a very poor understanding of the english language. She submits that the respondent did not properly explain to her terms and conditions of her employment or issue her with a written contract in a language she could understand. She submits that she did not receive adequate health or safety training and that receipt of payslips was inconsistent.
4. SUMMARY OF RESPONDENT'S CASE
4.1 The respondent rejects all aspects of the complaint and any allegation of discrimination pointing out that their workforce is composed of a large majority of non-Irish nationals.
4.2 The respondent submits that the complainant received appropriate training and submitted documentation to that effect.
4.3 The respondent submitted that in September 2010 following notification of the complainant’s pregnancy that she was moved to a different area and that her hours remained the same. The respondent submits that the complainant was prohibited from using the buffer and that she was not exposed to any risk regarding dangerous chemicals.
4.4 The respondent submits that, in September 2010, the complainant voluntarily reduced her hours without notice when she informed her supervisor that she would no longer carry out duties in a particular area of the residences.
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 The complainant provided no evidence in relation to victimisation. Therefore the issue for decision by me is whether or not the complainant was dismissed by the respondent in circumstances amounting to discrimination, on grounds of gender, race and family status, in terms of section 6 of the Acts and contrary to section 8 of the Acts. In reaching my decision I have taken into consideration all of the submissions, oral and written, made to me by the parties as well as the evidence given by the witnesses at the hearing.
5.2 Section 85A of the Employment Equality Acts 1998 and 2004 sets out the burden of proof which applies to claims of discrimination. It requires the complainant to establish, in the first instance, facts upon which she can rely in asserting that she suffered discriminatory treatment. It is only when those facts have been established and are regarded by an Equality Officer as sufficient to raise an inference of discrimination that the onus shifts to the respondent to rebut the inference of discrimination raised.
Race and family status.
The complainant advanced no arguments and presented no evidence that her alleged discriminatory treatment was as a result of her family status. In relation to race the only evidence put forward by the complainant was in relation to her command of the English language. I accept the respondent’s contention that the complainant had a sufficient level of English to understand her conditions of employment and the health and safety training she received. I also accept the respondent’s assertion that the same Health and Safety procedures and equipment were applied to all staff and I find no evidence of discrimination in this regard.
Pregnancy
5.3 In a line of authorities starting with the judgement in Dekker v Stichting Vormingcentrum voor Junge Volwassenen the Court of Justice of the European Union (formerly the ECJ) has consistently held that since pregnancy is a uniquely female condition any less favourable treatment of a woman on grounds of pregnancy is direct discrimination on grounds of gender. Since this judgement the protection afforded to pregnant women in employment has been strengthened considerably in the caselaw of the CJEU and in the legislative provisions of the European Union.
5.5 In the instant case it is agreed that the complainant had advised the respondent, at the appropriate time, that she was pregnant. It is also agreed that the complainant’s hours were reduced a number of weeks after this notification. Consequently, the burden of proof shifts to the respondent to satisfy the Tribunal, on balance of probabilities, that there were exceptional circumstances unconnected with pregnancy or maternity, which discharge that burden. While both parties agree that the complainant’s hours were reduced they disagree as to why her hours where reduced.
5.6 S.I. No. 218 of 2000 transposed into Irish Law EU Directive 92/85/EC and section 4 provides: “it shall be the duty of every employer-
(a) to assess any risk to the safety or health of employees, and any possible effect on the pregnancy of, or breastfeeding by, employees, resulting from any activity at that employer's place of work likely to involve a risk of exposure to any agent, process or working condition and, for that purpose, to determine the nature, degree and duration of any employee's exposure to any agent, process or working condition and to take the preventive and protective measures necessary to ensure the safety and health of such employees and to avoid any possible effect on such pregnancy or breastfeeding,
(b) without prejudice to paragraph (a) and the provisions of the Safety, Health and Welfare at Work (Chemical Agents) Regulations, 1994 ( S.I. No. 445 of 1994 ), and to the occupational exposure limits laid down in any approved code of practice referred to in the said Regulations to—
(i) assess any risk to safety or health likely to arise from exposure of a pregnant employee to an agent or working condition listed in Part A of Schedule 2, resulting from any activity at that employer's place of work, and to ensure that such employee is not required to perform duties for which the assessment reveals such risk.
(ii) assess any risk to safety or health likely to arise from exposure of an employee who is breastfeeding to an agent or working condition listed in Part B of Schedule 2, resulting from any activity at that employer's place of work and to ensure that such employee is not required to perform duties for which the assessment reveals such risk.
(c) where the risk assessment carried out under paragraphs (a) and (b) reveals a risk to an employee's safety or health, or any possible effect on the pregnancy or breastfeeding of an employee, and it is not practicable to ensure the safety or health of such employee through protective or preventive measures, to adjust temporarily the working conditions or the working hours (or both) of the employee concerned so that exposure to such risk is avoided.
(d) in cases in which the adjustment of working conditions or working hours (or both), referred to in paragraph (c), is not technically or objectively feasible (or both), or cannot reasonably be required on duly substantiated grounds, to take the measures necessary to provide the employee concerned with other work, which does not present a risk to the safety or health of, or any possible effect on the pregnancy or breastfeeding by, such employee.”
5.7 At the hearing the complaint’s direct supervisor gave evidence that no formal risk assessment was carried out but that she assessed the complainant’s needs “as a woman” and moved the complainant to less physically demanding duties, as was the normal practice used to accommodate a number of pregnant staff members in previous years. The supervisor gave evidence that the complainant was prohibited from using the buffer. In relation to any earlier written assertion from the respondent that the complainant had voluntary reduced her hours the supervisor stated the complainant approached her one morning and simply stated that she would not work in a particular residential area. The supervisor submits that no further discussion took place and that she could identify no alternative appropriate work on the campus given the complainant’s pregnancy. I found the supervisors evidence to be credible and I accept her version of events. I find the following to be the relevant facts in relation to the reduction of the complaint’s hours,
- The complainant informed the respondent of her pregnancy at the appropriate time.
- The respondent failed to carry out a required risk assessment.
- Despite the absence of a risk assessment the respondent made a decision on what were appropriate duties for the complainant.
- When the complainant informed the respondent that she no longer wished to perform the new duties, there was no process in place that would allow respondent company to give proper consideration to identifying alternatives and no required measures were taken.
- A reduction in working hours for the complainant resulted as no further appropriate duties for a pregnant person were available. The respondent reduced the complainant’s hours due to her pregnancy. (Specifically because the use of the buffer equipment was required in most other areas)
5.8 While the supervisor acted in a common sense way to accommodate the complainant’s pregnancy, she was let down by the company not having a proper procedure in place. I note the company now has an official risk assessment procedure in place. In not fulfilling their obligations under S.I. No. 218 of 2000 and the Maternity Protection Act, 1994 I conclude that the respondent failed to provide the necessary protection for the complainant in the course of her work and accordingly she suffered adverse treatment in consequence of her pregnancy.
The failure to carry out the assessment soon after she informed them she was pregnant means the complainant was disadvantaged because she was pregnant and this amounts to discrimination in relation to her conditions of employment on the grounds of gender.
The respondent failed to carry out a statutory obligation to carry out a risk assessment. This failure deprives the respondent of any an objective evaluation regarding what would constitute suitable work for the complainant. The respondent has failed to discharge the probative burden required and the complainant's case is therefore entitled to succeed.
5.9 In relation to the failure to schedule work for the complainant for a week and a half following the eight week absence, I find no evidence that this was a discriminatory act.
6. DECISION OF THE EQUALITY OFFICER.
6.1 I have concluded my investigation of the complaint. Based on all of the foregoing, I find, pursuant to Section 79(6) of the Act, that
a) I find that that a prima facie case of discriminatory treatment on the ground of race has not been established and this element of the complaint fails.
b) I find that that a prima facie case of discriminatory treatment on the ground of family status has not been established and this element of the complaint fails.
c) I find that that a prima facie case of victimisation has not been established and this element of the complaint fails.
d) In find that the respondent did discriminate against the complainant in relation to her conditions of employment on the ground of gender.
I order the respondent to pay the complainant €1,400 in compensation for the discriminatory treatment suffered. This figure takes into account the procedural nature of the lapse by the respondent and the relatively short period that the complaints hours were affected. 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.
____________________________
Peter Healy
Equality Officer
22 December 2014.