Employment Equality Acts 1998-2011
Decision No: DEC-E2015-111
Parties
Ms. Anna O’Neill
And
Eventelehpant (in liquidation)
File No: EE/2012/459
Date of issue 30 October 2015
1. DISPUTE
This dispute involves a claim by Ms. Anna O’Neill (hereinafter referred to as ”the complainant”) that she was discriminated against by Eventelephant (hereinafter referred to as ” the respondent”), on the grounds of gender contrary to section 6 of the of the Employment Equality Acts (hereinafter referred to as ‘the Acts’) in terms of conditions of employment and constructive dismissal in accordance with section 8 of the Acts
2. BACKGROUND
2.1 The complainant referred a complaint under the Employment Equality Acts, 1998 and 2011 to the Equality Tribunal on 27 August 2012. On the 22nd May 2015, 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 3 September 2015. The respondent was in liquidation and the appointed liquidators were put on notice of the hearing. The complainant attended the hearing, the respondent did not.
2.2 This decision is issued by me following the establishment of the Workplace Relations Commission on 1 October 2015, as an Adjudication Officer who was an Equality Officer prior to 1 October 2015, in accordance with section 83.3 of the Workplace Relations Act 2015.
3. SUMMARY OF COMPLAINANT'S CASE
3.1 The complainant submits that she was headhunted by the respondent in 2008 to participate with two CEOs in the start-up of the new company. She signed a contract of employment in 2008 as Head of Marketing and Officer Manager for a salary of €60,000 per annum. The complainant submits that as one of only three people that made up the company at the outset, that she was involved in all strategic and operational matters at that time. The company would eventually go on to employ 14 people. The complainant says that it was understood that, as a start-up, the new company would have some operational losses over the first year or so.
3.2 In January 2009, the complainant agreed to take a pay cut as the company was struggling due to the withdrawal of a number of intended investors. The complainant submits that subsequent pay cuts were not applied evenly to all staff. In February 2009 the complainant went on her first Maternity leave with understanding in place with the management that she would return to work on her same salary but on a four day week basis. At that time the complainant submits she was earning €3700 gross a month. The complainant submits that the respondent engaged a replacement (Ms A) to carry out her duties in her absence.
3.3 The complainant states that when she contacted the respondent in December 2010 to discuss her return to work, a meeting was arranged with one of the CEOs. At that meeting the complainant submits that she was informed that her position was no longer available but that the post of Sales Support Executive was available with a salary equating to €2500 gross a month. The complainant was greatly upset by this development as it was her understanding that she had a right to return to her old job following maternity leave and she asked for time to consider. The complainant submits that it was her understanding at that time that the offer of Sales Support Executive was essentially the same job she had carried out previously (less duties being carried out by Ms A) for less money.
3.4 The complainant says that she accepted the position, due to the stress involved with previous salary negoations and the knowledge that she would have to be in employment to qualify for state maternity benefit in regards to her second pregnancy. The complainant says that at the end of the meeting she informed the CEO that she was pregnant again which was received in a negative manner.
3.5 The complainant returned to work in January 2011 until May 2011, but not to the role of Sales Support Executive. Instead the respondent taking into consideration the complainants intention to go on maternity leave in May, assigned her to a research role.
3.6 The complainant submits that she contacted the respondent in February 2012 to arrange for her return to work in April 2012. The complainant says that this time the respondent told her that she would be taking the position of Support Executive in the Customer Relations Division. The complainant says that she reluctantly took this position.
3.7 The complainant submits that upon her return to work in April 2012 that a series of events took place that ultimately forced her to resign. Immediately upon her return the complainant says that there was no desk, computer or phone access available to her and that it took a week to organise same.
3.8 The complainant states that during her first few weeks back that she was forced to take annual leave one day a week for a couple of weeks, as her child care arrangements fell through but that this was agreed by management. In addition to this the complainant states that she was forced to take further time off as her son became sick.
3.9 In May the complainant herself was required to take some sick leave. The complainant states that on the 29th May 2012 the Respondent contacted her to advise that she would not be receiving sick pay and suggested that she had not done a full weeks work for months. The complainant says that she was forced to hang up on the Finance Director due to his threating tone and insinuations that she was not pulling her weight.
3.9 The complainant contends that ultimately she had no alternative but to resign from the company.
4. SUMMARY OF RESPONDENT'S WRITTEN SUBMISSION
4.1 The respondent submits that any changes made to the complainants role and working conditions during her employment arose as a result of essential changes required in the Respondent’s business and in response to rapidly changing trading conditions and the financial position of the respondent.
4.2 The respondent rejects the complainant’s allegations in their entirety and submits that the complainant has failed to establish a prima facie case of discrimination.
4.3 The respondent submits that the special protection afforded by section 6(2A) covers the period from pregnancy until the end of maternity leave. The respondent submits that that the alleged discriminatory treatment referred to within the claim relates to periods on return from maternity leave in January 2011 and again in April 2012 and as such are outside the protected period.
4.4 The respondent submits that the complainant commenced employment in April 2008 in relation to Marketing and Operations functions but that after the website went live her job was changed to Customer support Manager with three junior graphic designers reporting to her.
4.5 The respondent submits that a review of the financial position of the business was carried out in 2009 concluded that the situation was unsatisfactory and that steps were required to address this. Some redundancies were instituted and a range of pay cuts depending on salary level were exercised including a 20% reduction for the complainant, but some received lesser pay cuts then others.
4.6 The respondent submits that in 2009 it was agreed with the complainant (who was pregnant at that time) that she could return on a 4 day week basis but that this would be reviewed in September, but that they confirmed to the complainant that she was a valued as a member of staff. The respondent rejects the allegation that he complainant was told her employment would be terminated if she did not accept the pay cut and also submits that they were unaware at the time of any stress causing problems for the complainants pregnancy.
4.7 The respondent submits that the complainant went on maternity leave in February 2010 with the full use of her company laptop and blackberry and that they included the complainant in communications about the ongoing critical financial situation of the business.
4.8 The respondent submits that in or around December 2010, that they agreed to a request from the complainant for a meeting, while she was still on maternity leave. The respondent further submits that it was at that time that they decided they no longer had need for a support role such as performed by the complainant. The respondent submits that they reviewed the requirements of the business in an effort to identify an alternative role for the complainant to avoid her redundancy.
4.9 The respondent submits that they met with the complainant in December 2010 to explain that her role no longer existed but that they offered her two other roles at salaries of €25,000 and €30,000 and at that meeting the complainant inquired about a redundancy payment.
4.10 The respondent submits that difficult trading conditions continued when the complainant went on maternity leave in May 2011 and that they met with her in February 2012 to discuss a number of work alternatives but rejected the complaint’s suggestions about working from home. They reject any allegations that they threatened the complainant.
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 The issue for decision by me is whether or not the complainant was treated in a discriminatory manner regarding her conditions of employment and dismissed by the respondent, in circumstances amounting to discrimination, on grounds of gender, 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 the 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.
5.3 In Melbury Developments v Arturs Valpetters [1] the Labour Court, whilst examining the circumstances in which the probative burden of proof operates stated that a complainant "must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn". It added that "the burden of establishing the primary facts lay fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule”. That Court more recently extended this analysis when it affirmed the approach adopted by this Tribunal in Businkas v Eupat Ltd [2]that one of the facts which a complainant must establish is that there was a difference in treatment between him/her and another person who does not possess the relevant protected characteristic, (see Glasgow City Council v Zafar [1998] 2 All ER 953)
5.4 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.
5.5 In the instant case, the parties agree on the timeline of events and 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,
1. During the first maternity leave she was replaced by Ms A who kept the more important aspects of the role upon the return of the complainant.
2. During the complainants absence the respondent recruited others and assigned aspects of her role to them.
3. If the circumstances put forward by the complainant amount to discriminatory dismissal as set out under section 2(1) of the Acts.
5.5 I note that that it is agreed by the respondent that there were no performance issues with the complainant and that she was of significant value to the organisation, it’s clear that the final role offered to the complainant is so far removed from her original position in the company that she has clearly been marginalised in the organisation. From a position of operational and strategic oversight the complainant found herself in a role equivalent to a call centre operative. Had the complainant not been absent from the company due to maternity leave it is reasonable to assume that her role within the organisation would have had a very difficult trajectory. Specifically the complainant was entitled to return to her old position after her first maternity leave.
5.6 While mindful of the dire financial position of the Respondent’s company during the period in question I am satisfied that the complainants original job did not cease to exist but rather that it was portioned out to others in her absence on maternity leave. Therefore the discriminatory acts took place during the protected period. While the respondent did make some redundancies, they were not at the level of the complainant; rather the number of senior managers seemed to increase.
5.7 In regards to the issue of discriminatory dismissal, I accept the account put forward by the complainant in regards to her final few weeks as an employee. Taking this into account combined with the issue of her marginalised role, I find that the complainant was dismissed by the respondent as set out under section 2(1) of the Acts.
5.8 Having regard to the foregoing consideration by the Labour Court and having considered the complainants evidence, I am satisfied that the complainant has established facts from which it can be shown that she was treated in a less favourable manner than others on the ground of gender.
6. DECISION OF THE EQUALITY OFFICER.
6.1 5.1 I have concluded my investigation of Ms O’Neill’s complaint. Based on all of the foregoing, I find, pursuant to Section 79(6) of the Act, that
(i) the respondent has discriminatorily dismissed the complainant on the ground of gender
(ii) the respondent has discriminated against the complaint in regards to her conditions of employment on the ground of gender.
Therefore, I find for the complainant.
6.2 I hereby order, that the respondent pay the complainant the sum of €30,000 in compensation for the effects of the discrimination. This figure represents compensation for infringement of her rights under employment equality legislation in relation to discrimination and does not include any element relating to remuneration and is therefore not taxable.
____________________________
Peter Healy
Adjudication Officer/Equality Officer
30 October 2015
[1] EDA 0917
[2] Arturas Businkas v Eupat Ltd (In Liquidation) EDA103