DEC-E2016-064

EMPLOYMENT EQUALITY ACTS 1998-2011

Decision - DEC–E2016-064

PARTIES

A Female Worker

(represented by Hoban Boino Solicitors)

and

A Retail Multiple

(represented by Byrne Wallace Solicitors)

File References: et-151968-ee-14

et-151977-ee-14

Date of Issue: 18th April, 2016

1. Dispute

1.1 This case concerns a complaint by the complainant that she was discriminated against by the respondent on the grounds of gender contrary to section 6(2)(a) of the Employment Equality Acts, 1998 to 2011 in relation to her conditions of employment. The complainant also claims that she was subjected to victimisation contrary to section 74 of the Acts.

2. Background

2.1 The complainant referred two separate complaints under the Employment Equality Acts, 1998 to 2011 to the Director of the Equality Tribunal on 11th December, 2014. In accordance with his powers under section 75 of the Employment Equality Acts, the Director General delegated the case on 10th November, 2015 to me, Enda Murphy, an Adjudication Officer/Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions under Part VII of the Employment Equality Acts, 1998 to 2011. This is the date I commenced my investigation. A written submission was received from the complainant on 24th June, 2015 and from the respondent on 24th September, 2015. As required by section 79(1) of the Acts and as part of my investigation, I proceeded to hearing on 19th January, 2016. The final correspondence in relation to the complaint was received from the parties on 1st February, 2016.

2.2 The complaint confirmed at the hearing on 19th January, 2016 that the complaint against Respondent No. 1 (i.e. the respondent identified on the Complaint Referral Form in Case Ref: et-151968-ee-14) was being withdrawn and that she was proceeding with the complaint against Respondent No. 2 (i.e. the respondent identified on the Complaint Referral Form in Case Ref: et-151977-ee-14). The complainant also confirmed at the hearing that the claim of victimisation contrary to section 74 of the Acts was being withdrawn.

2.3 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 the Complainant's case

3.1 The complainant commenced employment with the respondent as a Sales Assistant on 3rd October, 2007. The complainant submitted that she notified the respondent on 14th August, 2014 that she was pregnant. She subsequently had to take certified pregnancy related sick leave from work from 23rd September, 2014 until 13th October, 2014. When the complainant returned to work on 13th October, 2014 she intended to hand the medical certificate to Ms. A, HR Manager, but was unable to do so as she was not in the office at that time. The complainant approached Mr. B, Assistant Store Manager, and handed him the medical certificate which indicated that she was “suffering from pregnancy related problems and is fit for light work i.e. check out duties from 13th October, 2014”. The complainant submitted that Mr. B accepted the medical certificate and she proceeded to work on the checkout that day from 10 am to 6 pm. The next day the complainant was not rostered to work so she asked another worker on the checkout for the hours which was brought to the attention of Mr. A, who rostered her to work from 11 am to 7 pm on 14th October, 2014.

3.2 The complainant submitted that she attended for work on 14th October, 2014 but the HR Manager, Ms. A, would not accept her medical certificate (which she had handed in the previous day) and ordered the complainant to return home because she “was not fit for work”. The complainant requested a note from Ms. A to confirm that her medical certificate was not acceptable. However, she claims that Ms. A indicated that it was not company policy to issue such notes to staff. The complainant submitted that she had a meeting with the Store Manager, Mr. C, on 15th October, 2014 and was informed by him that, in his opinion, she was not medically fit to work on the checkouts and there wasn’t any other suitable work for her in the store. The complainant submitted that Mr. C would not accept the medical certificate which she had already submitted and which had certified her fit to work on the checkouts. The complainant then asked Mr. C to be put on health and safety leave but she claims that this request was also refused.

3.3 The complainant submitted that she raised a written grievance with the respondent’s HR Department in relation to this matter on 24th October, 2014 and that there was a subsequent exchange of correspondence between her solicitor and the respondent in relation to the matter. The complainant submitted that she was not allowed to resume work prior to the birth of her child on 15th April, 2015. The complainant submitted that she returned to work from maternity leave on 10th January, 2016 and was assigned to work on checkouts at that juncture.

3.4 The complainant submitted that she was subjected to the following acts of discriminatory treatment in relation to her conditions of employment arising from the aforementioned events, namely:

· the respondent failed to accommodate her as a pregnant worker contrary to Section 6(2A) of the Employment Equality Acts;

· the respondent failed to permit her to return to work following pregnancy related sick leave despite the fact that she was certified medically fit for light work such as checkout duties.

· the respondent failed to carry out a risk assessment in accordance with the provisions of the Pregnancy Directive[1] and to address the risks in the workplace;

· the respondent failed to accede to her request to be placed on health and safety leave in accordance with the provisions of Section 18 of the Maternity Protections Acts.

· the respondent made unlawful deductions from her wages during the period of her pregnancy.

3.5 The respondent relied upon the following cases in support of her complaint of discriminatory treatment on the grounds of gender, namely, Rabitte –v- EEC Direct[2], Interim Justitia –v- Kerrie McCarthy[3], Barton –v- Investec Henderson Crosthwaite Securities Limited[4], Rachel McCarthy –v- Niscayah Limited[5], Trailer Care Holdings –v- Deborah Healy[6], Ger Lally & Associates –v- Wioleta Siniecka Rusek[7] and Dekker –v- Stichting Vormingcentrum voor Junge Volwassenen[8].

4. Summary of the Respondent’s case

4.1 The respondent is a large retail multiple operating within the State. The respondent submitted that the complainant commenced employment in October, 2007 as a Sales Assistant and she worked on the grocery shop floor, merchandising and packing deliveries from June, 2014. The complainant informed the respondent’s HR Manager, Ms. A, that she was pregnant on 19th August, 2014 and she was subsequently absent from work due to pregnancy related illness from 26th August, 2014 to 14th September, 2014. The respondent submitted that the complainant spoke to Ms. A on 4th September, 2014 regarding her proposed return to work the following week and enquired as to the possibility of a change of department from grocery shop floor to grocery checkouts in order to ease her return to work and to assist with her pregnancy. The respondent submitted that no medical evidence was submitted or required from the complainant in support of this request which was facilitated immediately and the necessary changes were put in place ten days before the complainant was due to return to work.

4.2 The respondent submitted that the complainant returned to work on 14th October, 2014 and handed her medical certificate to the Assistant Store Manager, Mr. B, on duty who in turn left the envelope in the HR Manger’s office. The respondent submitted that the medical certificate stated that the complainant was “suffering from pregnancy related problems and is fit for light work i.e. checkout duties”. The following day when the complainant arrived for work she attended the HR Manager’s office in order to request time off for a pregnancy related medical appointment. The respondent submitted that it was at this point that Ms. A informed the complainant that the medical certificate she provided the previous day was concerning as working on checkouts could often require the lifting of heavy items such as bags of potatoes or minerals.

4.3 The respondent submitted that Ms. A was troubled by the brevity of the medical certificate and the probable absence of knowledge on the part of the Medical Practitioner of the common strains involved in a checkout role. With this in mind Ms. A advised the complainant to go back to her doctor and to “discuss it further with him”. The respondent submitted that given the variety of tasks that could possibly be encompassed by the doctor’s phrase “check out duties” further clarification was sought by Ms. A before potentially exposing the complainant to risk. Ms. A also indicated to the complainant that the company would be happy to assist in any aspect of her pregnancy as it had during her previous period of maternity leave. The respondent submitted that the complainant met with the Store Manager, Mr. C, on 15th October, 2014 and was assured that once she was certified fit to return to work she could do so. The respondent submitted that the position it adopted to seek further information from the complainant’s Medical Practitioner was again evident in a letter from the Regional Manager, Mr. D, to the complainant’s solicitor on 19th November, 2014 in which it was noted that the company “awaits confirmation from [“the complainant’s”] medical practitioner to clarify that she can work on checkouts”.

4.4 The respondent submitted that it is a large employer employing over 18,000 staff, many of whom are female, and that it carries out risk assessments on a nation-wide basis to ensure a safe working environment for its staff, including its pregnant staff. The respondent submitted that in view of the large number of staff the company employs it would not be feasible to carry out individual assessments on the occasion of every pregnancy of a member of staff within its workforce. It further submitted that there is nothing in the language of the Safety, Health and Welfare at Work (General Application) Regulations 2007[9] or the Pregnancy Directive[10] which requires an employer to carry out assessments on an individual basis. The respondent submitted that risk assessments were in place for the duties that would have been carried out by the complainant but these could not be applied to her position given the failure on her part to provide the company with adequate information regarding her health and welfare.

4.5 The respondent submitted that the matters complained of by the complainant in the present claim fall under the remit of the Maternity Protection Acts 1994 and 2004 rather than the Employment Equality Acts. The respondent also submitted that the complainant’s claim relating to unlawful deductions from her wages is a duplication of another claim which she has referred to the Rights Commissioner Service under the Payment of Wages Act 1991. It submitted that the Equality Tribunal was not the correct forum to seek redress under Maternity Protection Acts and/or the Payment of Wages Act 1991, and accordingly, that the Adjudication Officer/Equality Officer did not have jurisdiction in relation to the entirety of this matter.

5. Conclusions of the Equality Officer

5.1 The issues for consideration by me are (i) whether or not I have jurisdiction to investigate the complainant’s case and (ii) whether or not the respondent discriminated against the complainant on grounds of gender, in terms of section 6(2) of the Employment Equality Act, 1998 and contrary to section 8 of that Act, in relation to her return to work following a period of pregnancy related sick leave in October, 2014. In reaching my decision I have taken into account all of the evidence, written and oral, submitted by the parties.

Jurisdictional Issue

5.2 In considering the jurisdictional issue, I note that the Maternity Protection Acts 1994 and 2004, which transpose into Irish law the provisions of the EU Pregnancy Directive, provides a comprehensive legal framework in which special protection is afforded to the health, safety and welfare of pregnant women in employment. The Acts also provide that any dispute in respect of certain entitlements (including the right to health and safety leave during pregnancy) under those Acts should be referred, in the first instance to a Rights Commissioner with a right of appeal to the Employment Appeals Tribunal (i.e. the aforementioned employment rights adjudication and redress mechanisms pertain to complaints initiated prior to the commencement of Part 4 of the Workplace Relations Act 2015). There is no provision in the Acts which prevents an employee from referring a complaint of discriminatory treatment in respect of pregnancy or maternity related issues to the Equality Tribunal (or the WRC under the new workplace relations structures) or which requires an employee to choose that avenue of redress over referring a complaint to the Rights Commissioner, if the issues in question might also be appropriate to the maternity protection legislation.

5.3 The Employment Equality Acts provide, inter alia, that claims of discriminatory treatment on any of the nine prohibited grounds should with limited exceptions, be referred, in the first instance, to the Equality Tribunal (or the WRC following the commencement of Part 4 of the Workplace Relations Act 2015). Section 101 of those Acts sets out specific circumstances restricting a complainant from following dual avenues of redress under, inter alia, those Acts and unfair dismissals legislation. It does not place any restriction on claims which may also have a course of redress under the maternity protection legislation, in particular requiring a complainant to choose one avenue of redress over the other. I am of the view that had the Oireachtas intended to curtail an employee’s rights in that respect it could and would have specifically legislated for same. As no specific restriction exists under either of the Acts, I am satisfied that I have jurisdiction to investigate the present complaint under the Employment Equality Acts. The fact that the complainant may or may not have referred a complaint under the maternity protection legislation does not alter this decision.

Substantive Issue

5.4 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 in relation to her. If she succeeds in doing so, then, and only then, is it for the respondent to prove the contrary. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of “sufficient significance” before a prima facie case is established and the burden of proof shifts to the respondent. In deciding on this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the complainant. It is only where such a prima facie case has been established that the burden of proving there was no infringement of the principle of equal treatment passes to the respondent.

5.5 Section 6(1) of the Employment Equality Acts, 1998 to 2011 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)…..”. Section 6(2)(a) of the Acts defines the discriminatory ground of gender as follows – “as between any 2 persons, ... that one is a woman and the other is a man" and section 6(2)(c) of the Acts defines the discriminatory ground of family status as follows – “as between any 2 persons, ... that one has family status and the other does not".

5.6 The case-law of the European Court of Justice (as has been held in the cases of Webb –v- Emo Air Cargo[11], Brown –v- Rentokil Ltd[12] and Dekker –v- Stichting Vorm.[13]) makes it clear that any unfavourable treatment of a woman related to pregnancy or maternity constitutes direct discrimination on grounds of gender and this is incorporated into Irish law at section 6(2)(A) of the Employment Equality Acts, 1998 - 2011. It therefore follows as a matter of law, that to treat a woman less favourably because she is pregnant is to discriminate against her because she is a woman. Directive 92/85/EEC (the Pregnancy Directive) provides a comprehensive legal framework in which special protection is afforded to the health and safety and welfare of pregnant women in employment. Article 4 of the Directive places an obligation on employers to assess risks that may be imposed on pregnant women in employment and requires them to address any risks identified. Article 5 of the Directive requires an employer, in circumstances where an assessment reveals a risk to the health and safety of a pregnant employee, to avoid exposure to the risk by temporarily adjusting the working conditions and/or working hours of that employee, or where such adjustment is not feasible to reassign the employee to alternative work. Should reassignment to alternative employment not prove feasible, employers should grant Health and Safety Leave to employees in accordance with national legislation and practice. These matters are provided for in Irish law by Section 18 of the Maternity Protection Acts 1994 and 2004 and are regulated by the Safety, Health and Welfare at Work (General Application) Regulations 2007. The Labour Court held in the case of HSE Midlands Area –v- Zita Sweeney[14] that “The Court does not have jurisdiction for the enforcement of either the Regulations or the Pregnancy Directive. Nonetheless, in deciding whether the Complainant was subjected to less favourable treatment on the grounds of her pregnancy, the rights of the Complainant and the duty of the Respondent under Community law must be taken into account. Article 5 of the Pregnancy Directive, together with the transposing domestic legislation, is part of the body of law which defines those rights and duties. Accordingly, while the Court cannot impose any sanction for a breach of the Regulations or the Pregnancy Directive, it must nonetheless take their provisions into account in deciding if the Complainant suffered discrimination under the Act.”

5.7 The following facts are not in dispute between the parties:

· The complainant notified the respondent of her pregnancy on 19th August, 2014.

· The complainant was absent from work on certified pregnancy related sick leave from 26th August, 2014 to 13th October, 2014.

· The complainant returned to work on 14th October, 2014 and presented the respondent with a medical certificate which stated that “she is suffering from pregnancy problems and is fit for light work i.e. check out duties”.

· The complainant did not work for the respondent during the remaining period of her pregnancy from 15th October, 2014 prior to commencing maternity leave on 16th March, 2015.

5.8 The core issue which is in dispute between the parties in the present case relates to the precise nature of the duties which the complainant was capable of performing during the remaining period of her pregnancy following her return to work from a period of pregnancy related sick leave on 14th October, 2014. The complainant, on the one hand, claims that she had been certified medically fit to carry out light work such as checkout duties from 13th October, 2014 and that the respondent failed to accept this medical certificate and subsequently failed to allocate her work on the checkouts or any alternative duties for the duration of her pregnancy. The respondent, on the other hand, claims that the complainant was returning from a period of pregnancy related sick leave on 14th October, 2014 and that the medical certificate she submitted upon her return to work was inadequate and lacking in clarity and the reference to “light work” was unclear given that the tasks associated with checkout duties could involve the lifting of heavy items. The respondent claims that it was on this basis that the complainant was requested to obtain further clarification from her medical practitioner to confirm that she could, in fact, work on checkouts during her pregnancy.

5.9 In considering this matter, I note that the complainant had worked for the respondent since October 2007 and had been assigned to duties on the shop floor (which included merchandising and packing shelves) during the period immediately prior to her absence due to pregnancy related illness on 26th August, 2014. The respondent adduced evidence that the complainant contacted the HR Manager on 4th September, 2014 to inquire about the possibility of a reassignment to checkout duties in order to ease her return to work and help with her pregnancy. It was not in dispute that the respondent acceded to this request without the requirement for any medical certification at that juncture and the complainant was assigned to checkout duties upon her return to work on 14th October, 2014. However, upon receiving the medical certificate from the complainant on this date the respondent subsequently raised concerns with her regarding the interpretation of “fit for light work i.e. check out duties” (as defined on the medical certificate) on the basis that certain tasks associated with working on the checkouts could involve the lifting of heavy items. The HR Manager gave evidence that the complainant was requested to obtain a further medical certificate from her General Practitioner to confirm “what she could or couldn’t do” for the duration of her pregnancy.

5.10 It is clear that the respondent formed the view at that juncture that the reassignment of the complainant to checkout duties could potentially pose a risk to her health and safety in terms of her ability to carry out those duties during the remaining period of her pregnancy. I am satisfied that this view was formed by the respondent in the absence of any individual risk assessment having been carried out in relation to the potential risks associated with the reassignment of the complainant to checkout duties. The respondent argued that it carries out risk assessments on a nationwide basis in relation to the many operational roles within the business and therefore, that it would not be feasible, given the size of the organization, to carry out individual assessments on the occasion of every pregnancy of a member of staff within its workforce. I do not accept the respondent’s argument on this issue. The complainant had clearly been certified medically “fit for light work i.e. check out duties” with effect from 13th October, 2014.

5.11 In the circumstances, I am of the view that there was an obligation on the respondent to carry out an individual risk assessment at that juncture in order to assess any potential risks which it considered may have existed in terms of her capability or otherwise to perform the duties on checkout after she had returned to work following pregnancy related sick leave. If such a risk assessment had been carried out in the context of assigning the complainant to checkout duties and any potential risks to her health and safety were identified the respondent would then have been obliged to explore the possibility of temporarily adjusting her working conditions to avoid exposure to any such risk or failing this to place her on Health and Safety leave. Having regard to the evidence adduced, I am satisfied that the respondent failed to carry out any such risk assessment or to explore the possibility of reassigning the complainant to alternative duties for the duration of her pregnancy but rather placed the onus on the complainant to obtain further clarification from her medical practitioner regarding the duties she would be capable of performing.

5.12 I note that the complainant (both personally and by way of written correspondence through her solicitor) pursued the issue of her return to work with management on several occasions after the medical certificate was deemed unacceptable on 14th October, 2014. The respondent failed to respond to a number of these communications and when it did reply on 19th November, 2014 it maintained the position that further medical certification would be required to clarify the nature of the duties which the complainant was capable of performing before she could be allowed to return to work. The complainant engaged in further communication with the respondent on the matter (through her solicitor) and subsequently provided the respondent with a further medical certificate from her General Practitioner on 28th November, 2014 which confirmed that she was “suffering from pregnancy problems and is able to attend work and is fully fit for light duties not involving lifting i.e. is fit for work on the checkout desk”. However, the respondent continued to maintain its position that further medical certification would be required on the matter and did not make any efforts to carry out a risk assessment or consider the feasibility of alternative duties for the complainant during her pregnancy. As a result of the position adopted by the respondent, it subsequently transpired that the complainant was not allowed to return to work prior to the commencement of her period of maternity leave on 16th March, 2015.

5.13 The Safety, Health and Welfare at Work (General Application) Regulations 2007 oblige employers to take preventative and protective measures to ensure the health of pregnant employees. However, the Regulations put significant obligations on employers to find appropriate work for a pregnant employee and do not automatically require the employee to be put off work entirely. I am satisfied that the respondent’s failure to comply with its obligations to carry out a risk assessment and to adequately explore the possibility of temporarily adjusting her working conditions resulted in her being denied access to her employment during the period of her pregnancy. I find that this treatment amounted to less favorable treatment of the complainant on the grounds of gender during the period of her pregnancy contrary to Section 6(2A) of the Employment Equality Acts. In light of the foregoing, I find that the complainant has established a prima facie case of discrimination on the grounds of gender and that the respondent has failed to rebut that inference.

Claim in relation to unlawful deductions from wages

5.14 The complainant has also claimed that she was subjected to discrimination on the basis that the respondent made unlawful deductions from her wages. The complainant confirmed at the hearing that she had also referred a complaint to the Rights Commissioner Service under the Payment of Wages Act 1991 in relation to the claim of unlawful deductions from her wages. The complainant has not been presented any evidence from which I could reasonably conclude that there was any element of less favourable treatment on the grounds of her gender in terms of the alleged unlawful deductions from her wages. Accordingly, I find that the complainant has failed to establish a prima facie case of discrimination on the grounds of gender in relation to this element of her complaint. Furthermore, I do not have any jurisdiction to consider or decide complaints under the Payment of Wages Act 1991 as the jurisdiction for such matters in the first instance resides with a Rights Commissioner in the first instance.

6. Decision

6.1 Having investigated the above complaint, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts. I find that the respondent discriminated against the complainant on the gender ground pursuant to sections 6(2)(a) of the Acts, in respect of her conditions of employment contrary to section 6(2A) of the Acts. Accordingly, I find in favour of the complainant in this case.

6.2 In accordance with Section 82 of the Acts I order the respondent to pay the complainant the sum of €7,500 by way of compensation for the distress suffered as a result of the discrimination (which represents approx. 6 months gross pay for the complainant). This figure relates to compensation for the effects of the discriminatory treatment and does not include any element relating to remuneration.

______________

Enda Murphy

Equality Officer/Adjudication Officer

18th April, 2016

Footnotes

[1] 92/85/EEC

[2] DEC-E2008/007

[3] EDA095

[4] UK Employment Tribunal Appeal No. EAT/18/03

[5] EDA1328

[6] EDA128

[7] EDA1314

[8] [1990] ECR 1-3841

[9] SI No. 149 of 2007

[10] Directive 92/85/EEC

[11] Case C- 32/93

[12] Case C-394/96

[13] Case C- 32/93

[14] EDA0819