EQUALITY OFFICER'S DECISION NO: DEC-E/2015/096
PARTIES
Diane Curran
(Represented by SIPTU)
AND
Sodexo Ireland Limited t/a Sodexo
(Represented by IBEC)
FILE NO: EE/2012/541 & EE/2013/318
DATE OF ISSUE: 28th of September, 2015
1. Dispute
This dispute involves claims by Diane Curran against Sodexo Ireland Limited t/a Sodexo that she was discriminated against on grounds of gender and family status, in terms of section 6(2) and contrary to section 8 of the Employment Equality Acts, 1998 to 2011, in relation to her conditions of employment as well as a claim of harassment and victimisation.
2. Background
2.1 The complainant referred complaints against the above respondent under the Employment Equality Acts 1998 to 2011, to the Equality Tribunal on 18th of October 2012 and on the 14th of June 2013.
2.2 In accordance with his powers under section 75 of the Employment Equality Acts, 1998-2011 the Director delegated the case on the 28th of January, 2015 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 submission was received from the complainant but not from the respondent. As required by section 79(1) of the Acts and, as part of my investigation, I proceeded to a hearing on the 8th of May 2015.
3. Summary of complainant’s case
3.1 It is submitted that the complainant was employed by the respondent from March 2007, in the Little Sisters of Mercy on a part time basis and that she worked 20 hours per week. She was employed as a Food Service Assistant in the convent.
3.2 It is submitted that the complainant had no problems at work until she told her manager that she was pregnant.
3.3 It is submitted that following notification of her pregnancy the complainant experienced the following adverse treatment:
· Negative attitude and hostile environment throughout pregnancy
· Not informed of maternity entitlements, contrary to company policy
· Refusal to explain maternity entitlements
· Not being paid for ante-natal classes
· Not being paid for ante-natal medical appointments
· Not being facilitated with reducing hours of work
· Being refused a day off in lieu in May
· Not being provided with Area Manager’s phone number
· Being badgered for medical certs
· Phoning doctor without her consent
· Refusal to send maternity forms to head office
· Less favourable treatment
· Victimisation
4. Summary of respondent’s case
4.1 It is submitted that the respondent refutes the allegation that the complainant was subjected to a negative attitude and/or hostile environment during her pregnancy.
4.2 In respect of the other allegations the respondent submits that
· the complainant’s manager, Ms. O answered all of the complainant’s questions with regard to maternity entitlements, and when unsure clarified with a member of HR.
· Ms. O directed the complainant to the Maternity Entitlement Booklet which was left in the office.
· the respondent’s policy is to pay employees for time off for ante-natal medical appointments where these occur within working hours.
· The complainant indicated that she may need reduced hours of work later in her pregnancy and Ms. O had no problem with this and stated that she would ‘accommodate if too much’
· Ms. O had intended to grant the complainant the day off in lieu of the Bank Holiday but was unable to do so at last minute
· Ms. O did refuse to provide the complainant with the Area Manager’s phone number as she considered that complaints were best put in writing
· Ms. O did request medical certs as she deemed it correct procedure to do so
· Ms. O did phone the complainant’s doctor due to a genuine concern but accepts that this was an error of judgement
· Ms. O provided the complainant with an envelope and an address to forward her maternity forms to head office
· There was no victimisation of the complainant
5. Findings and Conclusions of the Equality Officer
5.1 The issues for decision by me now are, whether or not, the respondent discriminated against the complainant, on grounds of gender and family status, in terms of Section 6 and contrary to Section 8 of the Employment Equality Acts, 1998 to 2011, in relation to her conditions of employment and whether she was subjected to harassment and victimisation by the respondent. 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.
5.2 Discrimination
5.2.1 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".
5.2.2 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) and (c) of the Acts define the discriminatory grounds of gender, and family status 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 "...
5.3 Gender-Pregnancy and the special protected period
5.3.1 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]. In Brown v Rentokill Ltd, the Court of Justice explains why pregnancy is a special protected period:
Article 2(3) of Directive 76/207 recognises the legitimacy, in terms of the principle of equal treatment, first, of protecting a woman's biological condition during and after pregnancy and, second, of protecting the special relationship between a woman and her child over the period which follows pregnancy and childbirth.
It was precisely in view of the harmful effects which the risk of dismissal may have on the physical and mental state of women who are pregnant, women who have recently given birth or women who are breastfeeding, including the particularly serious risk that pregnant women may be prompted voluntarily to terminate their pregnancy, that the Community legislature, pursuant to Article 10 of Council Directive 92/85/EEC of 19 October 1992 on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding (tenth individual Directive adopted within the meaning of Article 16(1) of Directive 89/391/EEC) (OJ 1992 L 348, p. 1), which was to be transposed into the laws of the Member States no later than two years after its adoption, provided for special protection to be given to women, by prohibiting dismissal during the period from the beginning of their pregnancy to the end of their maternity leave. [4]
5.3.2 The Labour Court has found that ‘only the most exceptional circumstances not connected with the condition of pregnancy allow a woman to be dismissed while pregnant. It is equally well settled law that the dismissal of a pregnant woman (which can obviously only apply to a woman) raises a prima facie case of discrimination on the gender ground. Once such a case has been raised the burden of proof shifts and it is for the respondent employer to prove that that the discriminatory dismissal did not take place.’[5]
5.4 Conditions of employment
5.4.1 The complainant, advised the hearing, that she informed her manager Ms. O about her pregnancy in December 2011. The complainant stated that she had never experienced any problems at work prior to her informing the respondent of her pregnancy. She stated that following notification of her pregnancy her manager’s attitude changed towards her and she became hostile towards the complainant.
5.4.2 The complainant submitted that on 15th of January 2012, a risk assessment was conducted by the respondent in relation to the complainant’s pregnancy and the complainant was given a document to complete. The complainant advised the hearing that Ms. O told her at this time that that the purpose of this was that the complainant might need to have reduced hours or shifts if it became too much for her. The complainant advised the hearing that she had told Ms. O that she might need reduced hours as she got bigger. The complainant stated that Ms. O’s attitude towards her changed as the pregnancy went on and any requests for time off were met with complaints from Ms. O that she didn’t have anyone to cover for the complainant and that she, Ms. O was not being paid any extra to cover for the complainant. Ms. O was not present at the hearing and the respondent advised the hearing that the complainant had not made any official request to reduce her hours so none had been refused.
5.5 Time off for appointments
5.5.1 The complainant has submitted that she had in in January/February 2012 asked Ms. O about her entitlements regarding ante-natal appointments and classes. The complainant submits that Ms. O advised her that she was not entitled to paid time off to attend such appointments. The complainant advised the hearing that Ms. O’s attitude towards her had changed around this time when the complainant needed to take time off for doctor’s appointments. The complainant stated that Ms. O had pointed out to her that there was no one to cover for her during these appointments and that she herself, wasn’t going to be paid any extra to cover for the complainant on such occasions.
5.6 Refusal of Day off in lieu
5.6.1 The complainant advised the hearing that Ms. O had approached her in late April 2012 and had asked her to work the May Bank Holiday. The complainant stated that had agreed to work the Bank Holiday as long as she could have another day off in lieu either the Wednesday or the Friday as she could not work all of those days together. The complainant submits that Ms. O indicated at the time that this day off in lieu would be facilitated. The complainant advised the hearing that she worked the Bank Holiday but that Ms. O had refused to allow her the day off in lieu. The complainant advised the hearing that she had worked the long weekend and then a whole week after that and had been exhausted. The complainant advised the hearing that she had approached Ms. O again the following week about her day off in lieu and stated that Ms. O informed her that her contract stated that she was ‘to be flexible’ .
5.6.2 The complainant stated that she was not permitted to take the day in lieu despite agreeing it with Ms. O in April. Ms. O was not present at the hearing to provide any direct evidence in respect of this matter. The respondent advised the hearing that it had been Ms. O’s intention to permit the complainant to take the day off in lieu on the Wednesday in question but that Ms. O had had to attend a family funeral on the Wednesday and so was unable to cover for the complainant and could not in the end grant the complainant the day off. The respondent provided no explanation as to why another day off was not granted to the complainant in such circumstances.
5.7 Request for reduced hours
5.7.1 The complainant submits that she had during the risk assessment in January signaled to Ms. O that she may need to reduce her hours as she got bigger. The complainant indicated that Ms. O had not at that time raised any objection to this. The complainant stated that she had then in May or June approached Ms. O about reducing her hours of work and provided her with forms from Social Welfare which the complainant had been told could be completed by her employer on a weekly basis during the periods of her reduced hours. The complainant submits that Ms. O took the forms but later informed the complainant that her hours could not be reduced as her contract was for flexible hours and that Ms. O would not have anyone to cover for the complainant. The complainant submits that she repeatedly asked for reduced hours but was refused. The respondent at the hearing stated that the complainant had signaled that she may need to reduce her hours but that she had not followed this up with any formal request for reduced hours. Ms. O was not present at the hearing to provide direct evidence on this matter.
5.8 Pay for hospital appointments
5.8.1 The complainant advised the hearing that she had not been paid for her hospital appointments. The complainant advised the hearing that she had asked Ms. O if she was entitled to pay for hospital appointments but that Ms. O had replied that she was not entitled to same.
5.8.2 The respondent advised the hearing that the policy is that employees do get paid for these appointments where they occur within working hours. The respondent stated that the complainant had not been paid where an appointment commenced before working hours and the respondent was not aware that it would run into working hours. Where this had happened the respondent stated that the complainant was later paid for those appointments. The complainant advised the hearing that she was not initially paid for any of her hospital appointments despite approaching Ms. O on several occasions requesting that she be paid for such appointments. The complainant advised the hearing that she did eventually receive back pay for some of these appointments.
5.9 Anti D jab
5.9.1 The complainant submits that on 25th of May 2012 she had to attend the hospital for an ‘Anti D Jab’. The complainant advised the hearing that she had advised Ms. O about the appointment in advance and had explained to her that she had to have the ‘jab’ due to the fact that she had Rhesus negative blood type. The complainant advised the hearing that she had at that time told Ms. O that she would not be coming back to work after the appointment as the nurse had advised her that she would be unable to work for several hours after the injection. The complainant stated that she had asked the hospital for a letter detailing the appointment and some literature about the ‘anti d jab’ which she provided to Ms. O a week or two before the appointment. The complainant stated that Ms. O told her that she was not entitled to be paid for this appointment.
5.9.2 The complainant advised the hearing that she had attended the appointment and as expected was unable to return to work that day and so applied to be paid for it on the basis that it was a hospital appointment. The complainant advised the hearing that she was not paid for it and when she approached Ms. O about it she was told she could take it up with the Area Manager. The complainant advised the hearing that she had requested that a meeting be arranged with Ms. C the Area Manager but that the meeting never took place. It emerged at the hearing that such meeting was arranged but that the notification did not reach the complainant as it was apparently sent to the wrong address.
5.9.3 The respondent advised the hearing that the complainant’s anti-D appointment commenced before the complainant scheduled start time and submits that it had not been clear to Ms. O that it would result in her non attendance at her scheduled working hours. The respondent stated that the complainant was later paid for this appointment once it became clear that she was unable to attend work due to the appointment. The complainant advised the hearing that the appointment was in May and that she was eventually paid for it the following November. The complainant at the hearing gave detailed evidence about the notification and information which she had provided to Ms. O in advance of this appointment. Ms. O was not present at the hearing to provide any direct evidence in relation to this matter.
5.9.4 The complainant stated that she had asked Ms. O for the Area Manager’s phone number on a number of occasions in order to discuss her entitlements but stated that Ms. O had refused to provide it to the complainant. The respondent advised the hearing that Ms. O should not have refused to provide the complainant with the Area Manager’s phone number.
5.10 Request for cert for 1 day off
5.10.1 The complainant advised the hearing that she had attended the doctor on 8th of June 2012 for a routine appointment but was not feeling well and had been having dizzy spells and blurred vision. The complainant stated that the doctor had advised her that her blood pressure was very high and that she should take the day off work. The complainant advised the hearing that she had then asked her fiancée Mr. K to phone the respondent and notify them that she would not be able to attend work that day due to her high blood pressure. Mr. K advised the hearing that he had phoned Ms. O and told her that the complainant had been to the doctor and would not be coming in to work that day as she had high blood pressure and had been highly stressed throughout her pregnancy. Mr. K stated that Ms. O had told him that the complainant would have to come in to work that day as she, Ms. O had a funeral to go to that day and there was no one to cover for her, and she then ended the conversation.
5.10.2 Mr. K advised the hearing that Ms. O phoned back a few minutes later and stated that the complainant would have to provide a medical cert for the day and that it would have to be handed in within 3 days i.e. by the 11th of June. Mr. K stated that he had then become upset and told Ms. O that he had just heard that his own grandmother had died that morning and he then hung up the phone. The complainant advised the hearing that Ms. O had then phoned Mr. K back and expressed apologies about his grandmother. Ms. O was not present at the hearing and the respondent could provide no direct evidence in respect of this matter. The respondent advised the hearing that it was not company policy to request a medical cert for one day’s sick absence.
5.11 Phonecall to complainant’s doctor without her consent
5.11.1 The complainant advised the hearing that she had on 19th of June 2012 received a phonecall from her doctor’s surgery asking her why Ms. O had phoned the surgery asking about the complainant’s medical condition. The Doctor’s Secretary had informed Ms. O that she could not disclose any information related to the complainant’s medical condition to anyone. The complainant stated that the Secretary then asked the complainant to inform Ms. O that she was not to phone the surgery enquiring about the complainant’s medical condition again as it would not be disclosed. A letter from the Doctor’s Secretary was submitted in support of this. The complainant advised the hearing that this incident caused her a great deal of distress and embarrassment.
5.11.2 The complainant advised the hearing that she had approached Ms. O about the matter and Ms. O had confirmed that she had phoned the complainants doctor. The complainant advised the hearing that she had told Ms. O that this had caused her great embarrassment and humiliation to which Ms. O replied “I was 100% right to phone the doctor” and added that Ms. C had “said so”, the complainant stated that she had then asked for Ms. C’s (the Area Manager’s) phone number which Ms. O refused to give her and shouted at her aggressively.
5.11.3 The complainant advised the hearing that, that evening when she got home from work she had googled Head Office details and had found a number for Ms. C and for Ms. N, HR Manager. The complainant stated that she phoned both numbers and left voice messages. The complainant advised the hearing that Ms. C had phoned her back and after the complainant relayed the incident about Ms. O phoning her doctor Ms. C affirmed that Ms. O had phoned the complainant’s doctor as she had been concerned about a rash which the complainant had and Ms. C stated that Ms. O was within her rights to do this as there were elderly nuns at risk due to contact with the complainant. The complainant advised the hearing that she had strenuously disagreed with Ms. C as she had no rash and had not been suffering from any rash.
5.11.4 The respondent advised the hearing that Ms. O had phoned the doctor and that this had been done out of genuine concern for the elderly nuns who were in her care and who may have contracted the rash from the complainant. The respondent advised the hearing that it accepts that Ms. O should not have phoned the complainant’s doctor.
6 Discrimination
6.1 Overall, on examination of all the evidence, on balance, I am satisfied that the complainant has raised an inference of discriminatory treatment on the grounds of gender in relation to her treatment during her pregnancy which the respondent has failed to rebut. I am thus satisfied from the totality of the evidence adduced that the complainant was discriminated against on the grounds of gender in relation to the above matters.
7 Harassment
7.1 Harassment is defined in Section 14A(7) of the Acts as any form of unwanted conduct related to any of the discriminatory grounds which has the purpose or effect of violating a person's dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.
7.2 The complainant advised the hearing that her treatment in respect of being asked for a medical certificates in respect of hospital appointments and in respect of 1 day of sick absence and Ms. O’s phone call to the complainant’s doctor without her knowledge amounts to harassment on grounds of gender.
7.3 I find that the treatment outlined by the complainant more appropriately meets the definition of less favourable treatment on grounds of gender in relation to her conditions of employment and so raises a prima facie case of discrimination on the grounds of gender which the respondent has failed to rebut. It does not meet the definition of harassment on the ground of gender, under the Acts. Accordingly I find that the complainant was not subjected to harassment on the grounds of gender.
8. Victimisation
8.1 The complainant has submitted that she was victimised by the respondent. The complainant at the hearing stated that she was victimised by being treated less favourably following her complaint to the Tribunal.
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”
8.2 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.
8.3 The complainant advised the hearing that she had submitted a complaint of bullying harassment and discrimination to the respondent in July 2012. The complainant advised the hearing that this matter had been the subject of an internal investigation by the respondent. The complainant advised the hearing that she had appealed the outcome of this investigation. The complainant advised the hearing that Ms. O and another work colleague Ms. X had been involved in the investigation process. The complainant submitted her complaint of discrimination to the Tribunal on the 18th of October, 2012. A copy of this complaint was sent to the respondent on the 24th of October 2012. I am thus satisfied that that the letter of complaint to the Tribunal and the complaint to the respondent amounts to a protected Act for the purpose of this Section.
8.4 The second component which must be present for a claim of victimisation is adverse treatment. The complainant in outlining the specified adverse treatment advised the hearing that she attended work on the 23rd of March 2013 to find a list of outstanding issues/complaints about her work. It referred to tasks which had not been completed correctly and/or which needed to be done. This list of outstanding issues had been left for her by Ms. X, a colleague of the complainant’s who had been involved in the investigation of her grievance. The complainant advised the hearing that there had never prior to this been any problems with her work performance or any issues raised in relation to same. The complainant advised the hearing of another incident where she had arrived an hour late for work one morning at end of March 2013 and stated that when she tried to explain to Ms. O why she was late, Ms. O would not listen to her reason but told her abruptly “I’m reporting you to Ms. C for being late”. The complainant submits that these incidents are retribution for making a complaint.
8.5 In examining the alleged adverse treatment it is not clear what adverse treatment the complainant was subjected to, while the incident of her colleague Ms. X making a list of issues about her work may have been inappropriate and may have annoyed the complainant, the complainant did not provide any evidence as to any consequences for her following the making of the list. It does not appear to have been used in any evaluation of the complainant’s performance or in any official capacity at all so while it may have annoyed the complainant I cannot see how it amounts to adverse treatment. If it had been used to evaluate or as a measure of the complainant’s performance or kept on her record and used against her, I can see how it could amount to adverse treatment but as it stands she has not shown that the making of this list had any consequences for her.
8.6 In relation to the incident where the complainant was late and was not allowed to explain to Ms. O the reason for her being late, the complainant has not shown that this incident had any consequences for her i.e. she has not indicated that she was in any way disciplined or reprimanded for it or that Ms. O ever in fact reported it to Ms. C or whether there were any consequences for her. The complainant admits that she was an hour late for work on the morning in question but apart from not being allowed to explain herself has not shown any adverse treatment in this regard.
8.7 Accordingly, I am satisfied from the totality of the evidence adduced in relation to this matter that the complainant has failed to establish a prima facie case of victimisation by the respondent in relation to these matters.
9 Family Status Ground
9.1 The evidence adduced by the complainant clearly related to her treatment during her pregnancy and thus supported a claim on the grounds of gender. The complainant adduced no evidence in support of her claim on the family status ground and provided no evidence of a comparator with a different family status. Accordingly I am satisfied that the complainant has not established a prima facie case of discrimination on the ground of family status and I find that she was not discriminated against by the respondent in relation to these matters.
10. DECISION OF THE EQUALITY OFFICER
10.1 I have completed my investigation of this complaint and in accordance with section 79(6) of the Employment Equality Acts, 1998-2011 I issue the following decision. I find –
(i) that the complainant was discriminated against by the respondent on grounds of gender in terms of section 6(2) of the Employment Equality Acts, 1998 -2011 and contrary to section 8 of those Acts in respect of her conditions of employment
(ii) the complainant was not harassed by the respondent on the grounds of gender or family status contrary to Section 14A of the Acts
(iii) that the complainant was not discriminated against by the respondent on grounds of family status in terms of section 6(2) of the Employment Equality Acts, 1998 -2011 and contrary to section 8 of those Acts in respect of her conditions of employment
(iv) that the complainant was not victimised by the respondent contrary to Section 74(2) of the Employment Equality Acts, 1998-2011
10.2 In making my award, I must thus ensure that the award is effective, proportionate and dissuasive. Having regard to the circumstances of the instant case and the rate of remuneration which the complainant was in receipt of at the relevant time, and the length of time the complainant was employed by the respondent I consider an award of compensation in the sum of €10,000 to be just and equitable in the present circumstances.
10.3 In accordance with my powers under section 82 of the Employment Equality Acts, 1998-2011 I hereby order that the respondent pay the complainant that sum by way of compensation for the distress suffered by her as a result of the discrimination. This award is not in the form of remuneration and is therefore not subject to the PAYE/PRSI Code.
___________________
Orla Jones
Equality Officer
28th of September, 2015
'Footnotes'
[1] [1994] ECR 1-3567
[2] [1998] ECR 1-04185
[3] [1990] ECR 1-3941
[4] ibid
[5] Intrium Justitia v Kerrie McGarvey Determination No. EDA095
[6] EDA1017