The Equality Tribunal
Employment Equality Acts
Decision DEC-E2015-059
PARTIES
Mary Gilman Bennett
(represented by William Egan & Associates)
- V -
Elaine Byrne’s Health and Beauty Clinic
(represented by ESA consultants)
File reference: EE/2012/265
Date of issue: 4th August 2015
Keywords - Employment Equality Acts – Discriminatory Treatment - Gender - Prima facie case – Health and Safety Leave - Maternity Protection Act
1. DISPUTE
1.1 This dispute concerns a claim by Ms Mary Gilmartin Bennett that she was subjected to discriminatory treatment by the respondent on the grounds of gender in terms of section 6(2) of the Employment Equality Acts (hereafter referred to as 'the Acts'), and contrary to section 8 of those Acts.
1.2 The complainant referred a claim of discrimination to the Director of the Equality Tribunal on 4 May 2012 under the Acts. On 1 September 2014, in accordance with his powers under section 75 of the Acts, the Director delegated the case to Peter Healy- 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 sought and received from the parties. As required by Section 79(1) and as part of my investigation, I proceeded to hearing on 8 September 2014. All written and oral evidence presented to the Tribunal has been taken into consideration when coming to this decision.
Written evidence presented on the day of the hearing.
1.3 At the hearing, the complainant sought to introduce a binder of documents as a submission to this Tribunal. Without examination of the binder the respondent objected to the introduction of such a volume of evidence on the day of the hearing. Upon examination of the binder of documents I am satisfied that the vast majority are documents already in the possession of the complainant with the exception of some technical information on tanning products. I afforded the respondent a number of weeks to submit any further written submissions in response to any issues in relation to any evidence raised on the day of the hearing. A final submission was received from the respondent on the 8th October 2014. I have not considered any evidence put forward by the complainant regarding the risks of any chemicals as they are not relevant to the issue under consideration. I accept the respondent’s assertion that she believed exposure to tanning chemicals to be a risk to pregnant employees.
2. SUMMARY OF THE COMPLAINANT'S CASE
2.1 The complainant submits that she was discriminated against by the respondent when the respondent removed her from her role as manager prematurely, failed to offer her alternative conditions of employment or in the event of that not being feasible, sourcing alternative employment but placing her on health and safety leave, shortly after she had informed the respondent of her pregnancy.
2.2 The complainant submitted that she was employed by the respondent as a General Manager of the respondent’s Health and beauty clinic beginning on 2 August 2011, on a permanent contract of employment that stated a probationary period of 3 months. The complainant informed the respondent that she was three months pregnant on 2 December 2011.
2.3 On the 9th December 2011 the complainant submits that she was requested by the respondent to sign an already completed risk assessment. The complainant submits that she signed this form as believing that nothing further would arise.
2.4. On 13 December 2011 the respondent informed the complainant that she was to be placed on Health and Safety (H&S) leave under section 19 of the Maternity Protection Act 1994 by virtue of the risks that arise from the risk assessment.
2.5. The complainant submits that the risk assessment does not point out any risks that could not be carried out by another employee without undue burden to the respondent. The complainant submits that the risks identified only amount to 2% of her working month. Specifically, the complainant submits the following comments in regard to the risks identified.
· Lifting boxes – one hour per month
· Movement of small furniture – only occurred at Christmas
· Stocking shelves at higher level – Never arose
· Moving boxes – 10 minutes per month
· Use of the fire exit stairs. – never arose
· Use of main stairs – twice a day
· Stock taking / removing drawers - occurred once a month
· Tan machine/ tan training – exposed to spray for 15 minutes. Complainant submits that she had only trained one person in 4 month employment.
2.6 The complainant submits that there was no risk surrounding her pregnancy which would require her being placed on H&S leave. She further submits that if any such risks existed that the respondent was premature in placing her on such leave. The complainant submits that she attempted to discuss the risks outlined in the assessment with the respondent to make it clear that none of the risks would affect her pregnancy but that the respondent was not amenable to take any preventative measures to the limit exposure to the risks.
2.7 The complainant submits points ot that under Section 8 of the Safety Health and Welfare at Work Act 2005, the respondent failed to take any preventative measures arising from the risk assessment that would allow the complainant to continue in her employment.
2.8 The complainant submits for consideration a previous decision by the Equality Tribunal DEC-E2004-43, Doorty and University College Dublin relating to the issue of H&S leave, where the equality officer found,
“ the respondent also had obligations to the complainant for the duration of her contract of employment. I am not satisfied from the evidence of the respondent that it gave adequate consideration to finding creative solutions to an undoubted problem. From its point of view, the availability of the postgraduate student was a clear solution to the completion of the required experiments. No consideration was given, for example, to permitting the complainant carry out the 30% of her duties she was still able to perform, while the post-graduate student carried out the remainder. The respondent did not consider either whether the complainant could have been moved to another area of work. I find that the respondent discriminated against the complainant in placing her on health and safety leave without due consideration.”
3. SUMMARY OF THE RESPONDENT’S CASE
3.1 The respondent rejects the allegations of discrimination brought by the complainant.
3.2 The respondent states that she was simply fulfilling her obligations under the Safety Health and Welfare at Work Regulations, to complete a risk assessment once she became aware that the complainant was pregnant. The respondent submits that she filled in a risk assessment form and then had a meeting with complainant to discuss and take into account the views of the complainant after which the complainant signed the form. The respondent submits that it is wrong to suggest that the complainant was forced to sign the form without consultation.
3.3 The respondent submits that the most notable risk arising from the assessment was the risk of exposure to chemicals used in spray tanning because the general manager is responsible to the training of staff in the use of spray tanning machines. The respondent submits that the exposure to these chemicals poses a risk unborn children and that she was not prepared to take any such risk. The respondent points out that she is not an expert in this field however, where a risk exists that she is obliged to act.
3.4 The respondent submits that there are no relevant comparators in the organization that have been treated more favorably than the complainant. The respondent submits that while there was another pregnant employee at the relevant time that she was engaged in a completely separate role from the complainant and is therefore not a relevant comparator.
3.5 The respondent rejects any allegation that she placed the complainant on Health and Safety leave prematurely. She submits that in this particular situation, given that the complainant works in a standalone role, that there was no suitable alternative work available to her and also, it was not practical or possible for another employee to take up the duties that pose a risk to the complainant.
3.6 The respondent rejects any allegation that she failed to follow procedure as laid down by legislation by failing to ascertain if conditions of employment and/or working hours could be altered so that the complainant would not be subject to alleged risks identified. She submits that as owner, she did review the business to consider if there were any practical and suitable alternatives available to maintain the complainant during her pregnancy, however given the nature of her standalone role (a General Manager hired to run the clinic and grow that business) and the small size of the business, there were no suitable alternative roles available to eliminate these risks. The majority of staff are employed in the role of beauty therapists, completing treatments with clients daily. The respondent submits that this is the foundation on which the business’s finances are raised and therefore it is not reasonable to take these employees away from clients to carry out the work of another member of staff.
3.7 The respondent rejects any allegation that she refused to take into consideration suggestions put forward by the complainant in relation to risk assessment discussions. She submits that at no time did the complainant put forward alternatives including at a meeting for that purpose on the 14th December 2011. The respondent says that the complainant subsequently wrote to her on the on the 29th of December stating that she was physically and mentally fit to carry out her duties, which is not disputed. In response to this letter the respondent says that she provided a further opportunity to raise her grievances which the complainant did not act on.
Rights Commissioner Decision.
3.8 The respondent submits as evidence a 2012 decision by a Rights Commissioner (Case r-122518-mp-12/jw) that, in the same circumstances as the complaint before this Tribunal, the correct action was taken by placing the complainant on Health and Safety leave.
4. FINDINGS AND CONCLUSIONS OF THE EQUALITY OFFICER
4.1 I am cognisant that the issue of the placing of the complainant on Health and Safety Leave has been the subject of a decision by a Rights Commissioner. However, I am satisfied that this complaint is substantially different form the complaint investigated by the rights commissioner. The issue for decision by me is whether or not complainant was subjected to discriminatory treatment by the respondent on grounds of gender, in terms of section 6 of the Acts and contrary to section 8 of those Acts when she was placed on Health and Safety Leave by the respondent. I must consider the wider circumstances of the complaint and I have an obligation to investigate the particulars of the risk assessment.
4.2 Section 85A of the Acts sets out the burden of proof which applies to claims of discrimination. It requires the complainant to establish, in the first instance, facts from which discrimination may be inferred. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised.
4.3 The entire period of pregnancy and maternity leave constitutes a special protected period as outlined in the European Court of Justice decisions in Webb v EMO Air Cargo (UK) Ltd [1994] ECR 1-3567, Brown v Rentokil Ltd[1998] ECR 1-04185 and Dekker v Stichting Vormingscentrum [1990] ECR 1-3941. Furthermore, it is settled law that where discriminatory treatment takes place during that special protected period, it raises a prima facie case of discrimination on the gender ground.
4.4 In the instant case it is accepted that the complainant was pregnant and that the respondent was aware of that pregnancy. However, the issue for consideration by me is whether the complainant was subjected to discrimination by the respondent, specifically if the requirements of the Maternity Protection Act were not applied correctly by the respondent as a mechanism to remove the complainant from employment.
4.5 In the case of Dyflen Publications Limited and Ivana Spasic (ADE/08/7) the Labour Court, in adopting the approach of Mummery LJ in Madrassy v Nomura International plc [2007] IRLR 246, stated that “… the court should consider the primary facts which are relied upon by the complainant in their proper context. It also indicates that in considering if the burden of proof shifts the court should consider any evidence adduced by the respondent …”.
4.6 I am satisfied that the following are the relevant facts in establishing upon which the complainant is relying upon to establish a prima facia case.
· It is agreed by the respondent at the hearing that at the relevant time the business was in financial distress and there was an overriding emphasis on cutting costs. It’s clear that the complainant’s position as manager and proportionate salary were an easily identifiable saving, as at hearing the respondent gave evidence that she and her sister were able to take over the duties of the complainant when she was on Health and Safety leave.
· It was reasonable for the complainant to sign the risk assessment with the expectation that it would not solely be used to force her to leave work against her wishes due to the highly generic nature of the majority of the risks identified such as using the stairs and moving small furniture.
· Having heard evidence from both parties, I accept the complainant’s assertion that she was opposed to the decision to put her on H&S Leave from the outset.
Taking into account the above its clear the complaint is covered by the gender ground and that she was placed on H&S leave against her wishes, solely on the basis of a risk assessment which could be used to exclude almost all pregnant employees from the work place. I am satisfied that the complainant has established, in the first instance, facts from which discrimination may be inferred and the onus shifts to the respondent to rebut the inference of discrimination raised.
Risk Assessment.
4.7 The respondent relies on her application of the risk assessment process to rebut the inference of discrimination. It is agreed that the risk assessment was drawn up solely by the respondent. I find that this risk assessment includes many risks which are so generic and commonplace that their application as a reason to be placed on H&S leave would result in the automatic placement of all pregnant employees on H&S leave. While the respondent now tries to draw a distinction between the generic risks and two serious risks, I note that there is no evidence that such a distinction was made at the relevant time and it is reasonable for the complainant to feel aggrieved that she was being placed on the H&S leave. I find no evidence that the respondent attempted to take any preventative measures to the limit exposure to these generic risks.
Use of Dangerous chemicals
4.8 In regards to the issue of exposure to dangerous chemicals I find the following to be the relevant facts,
I accept that the respondent had genuine concerns that exposure to tanning chemicals posed a risk to pregnant employees.
The respondent submits that exposure by the complainant to chemicals would arise through the proximity of her office to the tanning room and the requirement for the complaint to train in new staff. This is contested by the complainant.
The receptionist was also pregnant at the same time and located not far from the complainant.
I find that there is no evidence that the respondent gave any consideration to finding alternatives to an activity which made up a negligible aspect of the complaints job. It is clear from the respondent’s evidence at the hearing that no consideration was given to relocate the complaint closer to another pregnant employee or in finding someone else to train in new staff on using the tanning machine. While the respondent has made a general statement that alternatives were considered she has been unable to provide any specifics and I must conclude that therefore no alternatives were explored.
4.9 Its clear that if the risk assessment applied to the complainant had been applied to any of the other employee that they too would have been placed on H&S leave. I note that, a pregnant relative of the respondent was brought in to work at the business in similar conditions to the complainant and was not subject to a risk assessment.
4.10 In all the circumstances of this case, I am satisfied that the complainant has established, in the first instance, facts from which discrimination may be inferred. Accordingly, I find that the complainant has established a prima facie case and the complainant has failed to rebut it.
5. DECISION
5.1 Based on the foregoing, I find that the respondent discriminated against the complainant on the ground of gender, contrary to the provisions of the Employment Equality Acts.
5.2 I hereby order
(i) that the respondent pay the complainant the sum of €12,000 in compensation for the effects of the discrimination;
(ii) that the respondent put in place an adequate and appropriate policy to deal with the placing of employees on health and safety leave.
Peter Healy
Equality Officer
4th August 2015