DEC-E2015-045

The Equality Tribunal

EMPLOYMENT EQUALITY ACTS

DECISION NO. DEC-E2015-045

PARTIES

Ms Martina O’Sullivan

(Represented by Mr Breiffni O’Rourke, HR Consultant)

AND

BDM Stores Londis Ltd

(Represented by Mr Tiernan Lowey, BL, instructed by

Feeney Solicitors, Galway)

File reference: EE/2013/350

Date of issue: 17 July 2015

1 DISPUTE

1.1 This dispute concerns a claim by Ms Martina O’Sullivan that she was discriminated against by BDM Stores Londis Ltd on the grounds of gender by reason of pregnancy in terms of Section 6 (2) of the Employment Equality Acts and contrary Sections 8 of the Acts, in relation to her conditions of employment.

1.2 The claimant referred her claim to the Director of the Equality Tribunal on 11 July 2013 under the Employment Equality Acts. On 10 June 2015, in accordance with his powers under section 75 of the Acts, the Director delegated the case to me, Ray Flaherty, 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 received from both sides and in accordance with Section 79(1) of the Acts and as part of my investigation I proceeded to a hearing on 29 June 2015.

2 CLAIMANTS' SUBMISSION

2.1 The claimant started work for the respondent on 4 December 2011.

2.2 The claimant submits that on 8 May 2013 the MD of the respondent overheard a conversation between the claimant and her husband (who co-managed an in-shop franchise in the respondent’s premises) during which they spoke about her pregnancy. The claimant claims that, as a result of his becoming aware of her pregnancy, the MD significantly altered his behaviour towards her.

2.3 The claimant submits that a number of issues arose over the following weeks which included: alleged mistakes by the claimant in the calculation of wages, alleged errors in the calculation of/payment for bank holidays for the claimant and an alleged altercation between her and the MD in relation to the contents of a fridge.

2.4 The claimant stated that on her return to work from annual leave on 5 June 2013, she received a letter from the MD inviting her to a meeting later that day in relation to serious breaches of her work contract and trust, which allegedly occurred since 17 May 2013.

2.5 The claimant submits that she was taken aback by the allegations being made against her by the MD during the meeting of 5 June 2013. She further stated that her previous authority to use the company’s safe was revoked and she was required to seek the permission of either of the MD or the newly appointed shop manager (LW) before accessing the safe.

2.6 According to the claimant’s evidence, appalled by the apparent lack of trust in her being displayed by the MD, she questioned whether the change in attitude towards her was related to the fact that she was pregnant. The claimant submits that the MD denied that he was aware of the fact that she was pregnant.

2.7 The claimant further submits that she made a request at this meeting to be allowed to take a thirty minute break during her working day in light of her pregnancy and finish at 3:30pm. The claimant submits that prior to this she did not take a break until 3.00 which allowed her to finish work at that time rather than remaining to the end of the shift, i.e. 4.00 pm. The claimant stated that the MD indicated he had no problem with this request.

2.8 According to the claimant’s evidence, the MD then advised her that she would no longer be able to open the shop in the mornings as it required her to engage in lifting some heavy objects, which he contended was a risk given that she was pregnant.

2.9 The claimant submits that, as a result of the discussions which took place at the meeting on 5 June 2013, she received both a written and a verbal warning and was invited to attend a further meeting scheduled for 21 June 2013. The claimant stated that during this meeting the MD advised her of a new arrangement in relation to the taking of bank holidays which required her to use junior members of staff to cover her with regard to anytime she took time off in this regard. The claimant submits that this represented a demotion as well as a reduction of hours.

2.10 The claimant submits that at the end of this meeting she provided the MD with a letter setting out her position in relation to all matters under discussion and that she received a response dated 26 June 2013.

2.11 The claimant submits that following receipt of this letter from the MD she made an appointment with her GP who confirmed that she was well in her pregnancy and was fit to work. However, the claimant submits that the GP was concerned at the high levels of stress she was experiencing at that time with regard to her work situation and warned her to be careful as such levels of stress were not good for her baby.

2.12 The claimant submits that despite furnishing the respondent with her doctor’s certificate, it was ignored and a risk assessment was never carried out. The claimant also submits that communications on a daily basis between her and the MD were almost non-existent.

2.13 The claimant submits that on 19 July 2013 she received a letter inviting her to another meeting with the MD, which was scheduled for 24 July 2013. The claimant stated that in the light of the previous unfair and intimidatory treatment she had received from the MD, this letter caused her enormous additional stress and anxiety and she made a further appointment with her GP on that day (19 July 2013).

2.14 On the basis that her stress levels had increased significantly, the claimant submits that her doctor certified three weeks sick leave. The claimant states that at the end of the three week period she revisited her doctor who advised that she should not return to work for the duration of her pregnancy.

2.15 The claimant submits that she has not returned to work since leaving on 19 July 2013.

3 RESPONDENT'S SUBMISSION

3.1 The respondent states that the claimant started work on 4 December 2011 and was employed in a permanent part-time capacity as an Assistant Store Manager.

3.2 The respondent submits that the claimant normally worked a three day week shift pattern as follows: Mondays 7.00 am to 4.00 pm, Wednesdays 7.00 am to 4.00 pm or 9.00 am to 6.00 pm and Fridays 7.00 am to 4.00 pm.

3.3 The respondent maintains that any changes to the claimant’s hours of work were as part of a pattern of changes that have been implemented for business reasons. The respondent further submits that these changes affected a number of staff members.

3.4 The respondent submits that it is, and was at all material times, bound by the strict terms of the Londis Franchise Agreement in the manner in which it operated business. The respondent further submits that the claimant was at all material times aware of the fact that the respondent was required to operate a business within the strict parameters of the franchise agreement, which included, inter alia, the requirement that staff costs are limited to 10% of overall turnover.

3.5 The respondent submits that in January 2013 the performance of the shop was again reviewed by the franchisor, who advised that it would be necessary to take on a new employee with the primary focus of concentrating on the business’ margins. The respondent contends that as a result of this, he approached the claimant with the view to her incorporating this new role into her existing duties and extending her contract from permanent part-time to permanent full-time. The respondent submits that the claimant expressed no interest in taking on the position full-time as it would involve her losing certain social welfare benefits and it would not suit her childcare arrangements. Consequently, the respondent sourced and employed an additional store manager (LW) in April 2013 to take on the additional role as stipulated by the franchisor.

3.6 The respondent submits that in addition to the roster changes being introduced at the time, the recruitment of LW required a number of changes in the way the store was operated and in particular overlaps that may exist between him and the claimant with regard to the managerial roles.

3.7 The respondent submits that the claimant was advised of these changes. However, according to the respondent, no changes were implemented to the existing rostering arrangements during the period April to June 2013, other than the claimant’s name appearing on the roster for the first time, as LW had requested that he be allowed to establish a solid grounding in the store before making any changes.

3.8 The respondent submits that on 13 and 17 May 2013, two separate incidents occurred on the respondent’s premises involving the claimant which ultimately resulted in the institution of the respondent’s disciplinary procedures.

3.9 The respondent submits that on 5 June 2013, a meeting took place which dealt initially with the disciplinary matters which had arisen.

3.10 The respondent submits that he availed of the opportunity at this meeting to inform the claimant about a number of decisions which had been made in relation to her conditions of employment, which included changes that will be taking place in the claimant’s hours and shifts, due to pressures beyond the respondent’s control and directly connected to the shop performance. However, the respondent submits that these changes would be kept as close as possible to the existing arrangements.

3.11 The respondent submits that at this stage in the meeting the claimant informed him, for the first time, that she was pregnant. The respondent further submits that he congratulated the claimant and committed to making sure that she was provided with a counter stool once she was happy that her pregnancy could be made known to other staff.

3.12 The respondent submits that the claimant then raised the fact that she had ongoing back problems arising out of a previous car accident that would require her attendance at physiotherapy sessions on Mondays. The respondent further submits that in order to accommodate this, the claimant requested that her shift on Mondays would end at 3.00 pm.

3.13 The respondent submits that at this point he advised the claimant that she could not be allowed to lift anything heavy and, as a result, he would have to consider alternative opening arrangements, as the opening of the shop required a certain amount of heavy lifting.

3.14 In response to this, the respondent submits that the claimant stated that she and her husband would make arrangements for another member of the delicatessen staff to assist her in the opening of the store in the mornings. The respondent submits that while he was not comfortable with the suggestion, as the individuals involved were not members of his staff, he would consider it.

3.15 The respondent submits that on 7 June 2013 LW contacted the MD and informed him that the claimant was refusing to carry out his (LW’s) instructions. The respondent submits that when the MD sought to arrange another meeting, the claimant refused to participate until such time that she was given written assurances that the matter of her pregnancy would not be raised in the presence of any other witness at the proposed meeting.

3.16 The respondent submits that during the meeting, which took place at 2.00 pm on 7 June 2013, a forceful exchange of views took place between the parties. The respondent submits that the claimant raised the issue of her hours/shifts and stated that the MD would be sorry if he tried to change these. The respondent stated that it was his intention that the normal arrangements in relation to hours/shifts will be reinstated the following September.

3.17 The respondent submits that a further meeting in this regard took place on 14 June 2013 and that a risk assessment was carried out by the MD (who was qualified in carrying out risk assessments) on the same day.

3.18 The respondent submits that by way of a letter dated 20 June 2013, the claimant wrote to the MD raising a number of issues in relation to the previous disciplinary matters and seeking clarification/certainty in relation to her position/ her status within the store.

3.19 The respondent submits that, by way of letter dated 21 June 2013, the issues raised in the claimant’s letter were clarified. In particular, the respondent submits that the claimant was informed the respondent had responsibility for ensuring the safety of both her and her baby in the workplace. Consequently it was for this reason and other matters of health previously raised by the claimant that the respondent felt it could not reasonably request the claimant to open shop premises in the morning.

3.20 The respondent submits that the only actual change that took place in relation to the claimant’s hours/shifts from 21 June 2013 onwards was to change her Monday starting time by two hours i.e. moving from a 7.00 am - 4.00 pm shift to a 9.00 am – 6.00 pm shift.

4 FINDINGS & CONCLUSIONS OF THE EQUALITY OFFICER

4.1 The issue before me for decision is, whether or not, the respondent discriminated against the claimant, on grounds of gender by reason of pregnancy in terms of Section 6 and contrary to Section 8 of the Employment Equality Acts, 1998 to 2008, in relation to her treatment when she informed her employer that she was pregnant. 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 presented at the hearing.

4.2 Section 85A (1) of the Employment Equality Acts, 1998 – 2007 states: “Where in any proceedings facts are established by or on behalf of a claimant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.” This means that the claimant is required 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, the burden of proof passes to the respondent to prove the contrary.

The Labour Court elaborated on the interpretation of section 85(A) in Melbury v Valpeters (EDA/0917) where it is stated that the section: “places the burden of establishing the primary facts fairly and squarely on the claimant and the language of this provision admits of no exceptions to that evidential rule.”

4.3 Having carefully considered all the evidence presented by the claimant in her submission and in the oral evidence provided at the hearing, I am satisfied that her claim of discrimination is based on two aspects:

(1) the issues which arose in the working relationship between the claimant and the respondent and which formed the agenda for the meeting of 5 June 2013, came about as a result of the respondent becoming aware that the claimant was pregnant, having overheard the conversation between the claimant and her husband on 8 May 2013 and

(2) that the changes/reductions in the claimant’s shifts/hours/pay occurred as a result of her informing the respondent at the meeting on 5 June 2013 that she was pregnant.

4.4 Issues pre 5 June 2013:

Having carefully considered all of the claimant’s submission in relation to this aspect of her complaint, I find that the evidence does not support the contention that the respondent overheard the conversation on 8 May 2013. I am satisfied that the first-time the respondent became aware that the claimant was pregnant was when she advised him of same during the meeting on 5 June 2013.

While there was some dispute between the parties as to the exact point during the meeting at which the matter of her pregnancy was disclosed, I find, on the balance of probability, that it took place, most likely, late in the meeting.

My finding in relation to this aspect of the complaint is further underpinned by the fact that the agenda items for discussion were completely separate and unrelated to the claimant’s pregnancy. While it is not within the remit of this tribunal to consider or comment on the disciplinary process, I am satisfied from the evidence adduced that these issues would have arisen irrespective of whether or not the claimant was pregnant.

Accordingly, I am satisfied that the claimant has failed to establish a prima facie case for discrimination on the grounds of gender by means of pregnancy in relation to the events prior to or leading up to the meeting on 5 June 2013.

4.5 Issues post 5 June 2013:

With regard to the issues relating to the post 5 June 2013 period, I am satisfied from the evidence adduced that the claimant met the requirement of establishing a prima facie case of discrimination on the grounds of gender by reason of pregnancy.

This is primarily based on:

(a) the claimant’s contention that the respondent stated in writing, in a letter dated 26 June 2013, that her working hours had been reduced because she was pregnant and

(b) that there had been an actual reduction in the claimant’s hours/pay in the post 5 June 2013 period. On that basis, it fell to the respondent to prove that the above was not the case.

4.6 Letter of 26 June 2013:

The letter of 26 June 2013 from the respondent to the claimant was in response to correspondence from the latter dated 20 June 2013.

The claimant’s letter raised a number of issues relating to matters previously under discussion between the parties in the disciplinary process and other issues pertaining to her terms and conditions of employment.

In response to the matter of “reduction in working hours” the respondent states as follows in the letter of 26 June 2013:

“3. Your stated reduction in working hours

Note:

a. On 5th June you informed me that you are pregnant. At that meeting you informed me of your continued, and increasing, appointments with your physiotherapist for your hand and consequently shoulder problems. Taking this into consideration and as your employer it is my responsibility to ensure both you and your babies {sic} safety.

Based on the aforementioned facts I feel it is not reasonable for me to ask you to open the store and to do the work required in the mornings, hence the changes to your working schedule. Again this was discussed at our last three meetings. It has also been brought to my attention by a concerned employee from XYZ’s office that you were sick one morning last week and had to leave the shop floor. I cannot take the chance of you having to leave the shop floor unattended should you feel sick in the early mornings when there is no other cover. You also failed to inform me or LW of this. You must inform us when you are feeling ill and we will organise for you to be looked after off the shop floor.

b. As I feel you should not open I have no choice but to put you on the second or third shift 8:30 am or 12 noon start. I can only rota you based on when you need to leave the premises therefore you cut your own hours.

c. You informed me on the 5/6/2013 that you had an ongoing appointment on Mondays at 4.00 pm. On Monday 10/6/2013, you left the premises at 3:25 pm, facilitated by your breaks and cover supplied on the Rota. Your appointment on the 17/6/2013 was also accommodated. I suggest you make your appointments on your days off going forward.

d. On Friday 21/6/2013 you informed me that your appointment on Mondays has been changed and I subsequently adjusted the Rota accordingly, extending your finish time, in your presence and without question.

As your contract states you work three days a week: Monday, Wednesday and Friday in the region of 24 hours. We will endeavour to accommodate you as we always have done but your contract, at your request, and your unwillingness to accommodate change does make the task harder. Should your Friday arrangements change please inform either LW or M re your availability and we will look at adjusting the Rota to a later finish time for you. This applies to all seven days of the week should you wish to avail of the hours and we will consider, due to your seniority within the store, extending your contract to 40 hours per week.

As you are aware all staff members hours and shifts have also been changed, some quite dramatically with mooring shifts changing for evening and days swaps etc.”

Having carefully considered this correspondence in detail, I find that it does not support the contention being made by the claimant that it proves her hours were reduced because of her pregnancy. While the need to change the claimant’s start times is related to concerns around her pregnancy I am satisfied that this was motivated by reasons other than to simply reduce the claimant’s hours. On the contrary, this correspondence clearly demonstrates the respondent’s attempts to ensure that the claimant’s hours are not reduced and, in fact, the correspondence contains a clear offer of increased hours.

Consequently, taking all of the above into consideration, I do not find that the correspondence of 26 June 2013 supports the claimant’s contention that it establishes discrimination on the grounds of gender on the basis of pregnancy.

4.7 Reduction in hours/pay:

At the hearing the claimant provided evidencein relation to hours worked and pay received for the seven week period from 13 June to 25 July 2013. A detailed examination of his evidence shows that on two of the weeks in question (20/6 and 11/7) the claimant worked her normal 24 hours. In the remaining weeks, the claimant worked 16 (twice), 17, 21 and 11.75 hours respectively. I am satisfied that the pattern presented by this information does not suggest a conscious or systematic attempt to reduce hours.

I am further satisfied by the evidence presented that there were other genuine and objective reasons for the inconsistent pattern of hours worked, including leave of various forms.

Consequently, taking all of the above into consideration, I find that the evidence does not support a deliberate reduction in hours, let alone one based on the fact that the claimant was pregnant.

4.8 Change in Shift starting time:

It is clear from the evidence adduced that the only decision taken by the respondent which was prompted by the claimant’s pregnancy was the decision not to allow her to continue to open the shop in the mornings on which she was working. The evidence presented by the respondent in this regard suggests that the concerns were based on a number of health and safety grounds.

Firstly, the respondent was concerned that the opening of the shop required the lifting and moving of heavy objects, which the respondent considered presented a risk for somebody who was pregnant. I am satisfied that this was a reasonable and objective position for the respondent to take and appears to be genuinely motivated out of concern for the claimant rather than any attempt to disadvantage her or discriminate against her.

While I accept that the respondent’s original concerns in relation to the claimant’s opening of the shop in the morning were articulated at the meeting on 5 June 2013, I note that the respondent carried out a risk assessment on 14 June 2013, which confirmed the original observations.

Finally, in this regard, I note that when the respondent initially suggested, at the meeting of 5 June 2013, that he didn’t consider it appropriate for the claimant to open the shop in the morning, she countered with a proposal that would see one of her husband’s colleagues assist her with the heavy lifting associated with the opening of the shop.

I believe this suggests that the claimant also realised the risks attached to her opening the shop on her own while pregnant. The respondent rejected this proposal on the basis that the staff being proposed to assist the claimant were not employees of the respondent. I find this to be a reasonable position for the respondent to have taken in the circumstances.

4.9 Working relationship between the claimant and the respondent:

During the hearing the claimant indicated that the working relationship between her and the MD of the respondent had broken down. I find that this would not be an unexpected outcome given the disciplinary and other issues of contention between the parties that were clearly obvious in the period from May through to June 2013.

However, I do not find that the evidence supports the view that this breakdown in relationship was influenced in any way by the fact that the claimant was pregnant. On the contrary the evidence suggests that the breakdown in the relationship and, in particular, the disappearance of trust between the parties, had its origins in the deteriorating and fractious situation that evolved during this period of time and led to the instigation of disciplinary procedures.

Accordingly, I am satisfied from the totality of the evidence adduced in relation to this matter that the claimant was not discriminated against on the grounds of gender on the basis of pregnancy.

5. DECISION

I have completed my investigation of this complaint and in accordance with section 79(6) of the Acts I find that the respondent did not discriminate against the claimant and the grounds of gender in terms of Section (6) of the employment equality acts, 1998 – 2008 and contrary to Section 8 of those acts in respect of the matters before me for determination.

____________________

Ray Flaherty

Equality Officer

17 July 2015