ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00001299

Complaint(s)/Dispute(s) for Resolution:  

Date of Adjudication Hearing: 10/6/2016 and 19/08/2016

Workplace Relations Commission Adjudication Officer: Marguerite Buckley

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and Section 79 of the Employment Equality Act, 1998 following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

Attendance at Hearing: 

Complainant’s Submission and Presentation:

The Claimant was a data classification analyst with the respondent who is a group market research company. She commenced employment on the 1^st of February 2012 and worked for the “beauty team”. Her role involved the processing of point of sale data.

The complainant brought the following claims: 

1. Discrimination on the grounds of gender
2. Discrimination on the grounds of family status
3. Discrimination regarding her conditions of employment
4. Discriminatory dismissal (constructive dismissal)
5. Harassment
6. Victimisation 

The Complainant submitted that she enjoyed a very good working relationship with the Respondent for the first two years of her employment. However following the announcement of her pregnancy on the 30^th April 2014, she experienced “a sudden and unwarranted change in the way members of management behaved towards her”. “She was targeted and bullied”.

Her claims related to: 

1. Repeated corrections regarding company policy that weren’t previously enforced upon her

2. Sudden change in treatment towards her

3. Higher expectation placed on her as opposed to her colleagues

4. Unjustified disciplinary action

5. Bullying and harassment

6. Failure to provide essential facilities to allow her to breastfeed

7. Victimisation

8. Constructive dismissal

    As regards the sudden change in treatment from her managers towards her the Complainant submitted a bullet point list referring to 

• Being unsupported and undermined
• Withholding information required by her in order to her job
• Continuous issues with communication
• Rudeness
• Ignored interactions
• Dismissive responses
• Exaggeration of the truth
• Defensive emails
• Excessive hidden monitoring
• Public shaming

The Complainant worked in an open plan office. She gave examples of being asked to refrain from wearing sandals for health and safety reasons, not to eat ‘wet’ foods at her desk, requested to encourage a team member to integrate more with the rest of the team rather than spend their breaks together, desist from whispering with colleagues at her desk, desist from noisy typing, desist from using social media during working hours, disciplined due to a complaint of offensive language and conduct, corrected on the provision of inaccurate information, corrected on her work dress attire, corrected with regard to her timekeeping and use of mobile phone in open spaces.

The Complainant submitted a number of emails as evidence of the above and claimed that these took place because of her pregnancy.

The Complainant set out that she was visibly upset on numerous occasions.

The Complainant received a verbal warning in relation to a comment she made in jest with the comparator she identified in her claim. Her team lead took offence at the comment. A disciplinary action arose from this comment and the Complainant in her submission expressed deep regret for making the comment and accepted that it was “perhaps inappropriate”. In a later submission, the Complainant set out that she was “misquoted”. However she felt that she received an extreme punishment for her actions. She received a verbal warning. The Complainant set out in her submission that the comment was not entirely out of place in an environment where sexual innuendo was often made and bodily functions were loudly referred to across an open plan office environment by team members and management alike. The Complainant set out that she had apologised to all members of the team including the team lead who had brought the issue to HR attention and she felt that the issue had been resolved. The Complainant felt that the disciplinary action was excessive. At the time, the Complainant sent and two and a half page email to HR manager. She set out in the email how she felt the way the matter was dealt with had caused her personal stress and described same as immense. She described how she felt physically upset at her desk and that she felt isolated and lonely. She submitted that the incident effected her family life at home and she lost her appetite, had trouble sleeping, was worrying about the welfare of her baby, and had tremendous guilt. She went into detail about how she felt the investigation was flawed and the whole process was flawed and she had no faith that any future investigations would be carried out correctly. She was concerned for the future of her position and she felt undervalued as an employee.   She concluded the email stating that she was interested only in putting this situation behind her, moving on in a positive manner, repairing the damage the incident had caused and to do the job to the best of her ability. She requested that the letter would be placed on the record and attached to the file leading to the verbal warning for future reference.

The Complainant went on maternity leave on the 4^th December 2014. Before going on maternity leave she discussed with the HR manager her intention to breastfeed and the Complainant set out in detail how both she and the HR manager undertook a review of the Respondents premises to find a suitable room for her to express breast milk in privacy. However there was no decision on what area the Complainant would use on her return to work following her maternity leave.

The Complainant gave birth to a baby boy in December 2014.

The Complainant returned to the workplace with her baby in May 2015 a number of weeks before she was due to return to work. She met with her team members as well as management. She discussed her maternity experience and in her submission stated that she had discussed issues she had with breastfeeding such as recurring mastitis and lack of sleep. She relied on this as advising management of her intention to breastfeed on her return to work.

On her return to work following her maternity leave the Complainant worked two days

Day 1: Friday: 8am to 1pm

Day 2:   Monday: 8am to 4.30pm.

On Day 1 she spoke with her team lead and manager as to what facilities she would use to express breastmilk. Both directed her to HR. The HR manager was on leave that day and the Complainant went to speak with the managing director to discuss facilities for expressing breastmilk. She felt that the managing director who was a male was visibly uncomfortable with her request and re directed her to HR. The Complainant took issue with the managing director asking her if she was going to continue breastfeeding. She felt the whole interaction was awkward and left her feeling embarrassed and uncomfortable.

The Complainant worked on the following Monday. The HR manager did not make contact with her.

The Complainant also set out that on her return to work the position she was appointed to was a much less favourable one. She set out she was given responsibility for a different country than what she had previously been involved in and she claimed that she was no longer working in a group as part of a team. She felt isolated from team members and felt she had an increased workload, more responsibilities. Her new role left her “greatly isolated, pressurised and overwhelmed”.

The Complaint relied on this as examples of victimisation as a result of her earlier complaints about her treatment.

The Complainant set out that arising from her treatment at work following her return from maternity leave she became unwell. She went on certified sick until the 7^th August 2015 and never returned to the workplace. The medical certificates from her GP stated psychological stress.

The Complainant resigned from her position by email on the7th August 2015.

Respondent’s Submission and Presentation:

The Respondents case was that no facts were established by the Complainant from which it could be presumed there has been discrimination in accordance with Section 85 (a) of the Employment Equality Acts 1998 as amended had taken place.

The Respondent set out that at no state did it target the Claimant regarding issues of company policy and that the many of the emails referred to by the Complainant, were sent to the Complainant’s team while dealing with the team as a whole.

The Respondent had no knowledge of any objections put forward by the Complainant in regard to her workload.

The company has 110 staff in the building the Complainant worked in. The building comprised open plan offices and meeting rooms set out over a number of floors.

The Complainant had made a data access request and the Respondent had supplied two large boxes of documentation in reply to same. These boxes contained the emails that the Complainant was relying upon in support of her claim.

In general, the Respondent’s submission was that the information and appendices exhibited by the Complainant were extremely selective and the Respondent absolutely refuted the allegation that any corrections made to the Complainant post April 2014 were in any way linked to her pregnancy announcement.

Its case was that it followed its own disciplinary procedure with regard to the complaint made against the Complainant’s inappropriate language and the Claimant did not appeal the sanction given to her.

With regard to the provision of breastfeeding facilities, the Respondent’s HR manager and the Complainant toured the Respondent’s facility prior to her maternity leave with a view to identifying the best location for the Complainant to express. As all meeting rooms within the Respondent’s facilities were glass panelled, the only viable option was a room called the Shannon Room. The HR manager suggested that when the Complainant was using this room for expressing, a sign stating “meeting in progress” could be placed on the door and the Respondent would look into obtaining a blind for the small window in the room. The Respondent submitted that no firm decision was reached at that time with regard to this proposal. The HR manager did highlight to the Complainant at that time that there was another female employee within the company who had been given time to go home and either express or breastfeed her baby.   This suggestion wasn’t an option for the Complainant as she lived a forty minute drive away.

The Respondent pointed out that it is not obliged to offer facilities for breastfeeding in the place of work if more than a nominal cost. It referred to the statutory requirements of SI 654/2004 – Maternity Protection (Protection of Mothers who are Breastfeeding) Regulations 2004. The Respondent’s case is that it did comply with these regulations.

The Respondent’s case is that the Claimant was not dismissed but that she resigned from her position. The tests set out in Section 1 of the Unfair Dismissals Act 1997 were not met.

As regards discrimination on grounds of family status, the Complainant had not submitted any evidence in this regard.

As regards victimisation, the Complainant has not met the strict legal definition under Section 74 (2) of the Employment Equality Acts.

As regards harassment, the Complainant has not furnished any proof to meet the legal definition of same.

Decision:

Section 79(6) of the Employment Equality Act, 1998 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.

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. The written submissions were substantial and oral evidence was heard over two days. I will not be referring to every incident and event or every piece of correspondence submitted, but I have taken them all into account.

The Complainant put forward a series of incidents and events which she has presented as being discrimination by the Respondent in relation to her gender and family status. The Respondent on the other had said that it treated the Complainant in the same way as any other employee in the company and implemented the disciplinary process and provision of breastfeeding facilities in accordance with its own procedures.

It has been long held that the mere fact that the Complainant falls within one of the discriminatory grounds laid down under the Employment Equality Act is not sufficient itself to establish a claim of discrimination. The Complainant must deduce other facts from which it may be inferred on the balance or probabilities that an act of discrimination has occurred.

Having assessed both parties evidence, I find that on the balance of probabilities that the Respondent’s evidence was more credible. I accept that there was some element of falling out between the Complainant and her team lead; however I have not been provided any evidence to substantiate that this was in relation to the Complainant’s gender or family status or the fact that the Complainant was pregnant.

The emails from the Complainant of the 28^th of May 2014 and 11^th August 2014 have been described by the Complainant as setting out her grievances. I accept that the Respondent made no response to the email of the 11^th of August 2014 which was a detailed two and a half page email following the decision of the Respondent to give her a verbal warning. I can understand why the Respondent did not take further action as the Complainant in her email of the 11^th August 2014 wrote

“I have decided not to appeal the disciplinary action”…

”while I disagree with the outcome and feel the verbal warning is a disproportional punishment, I respect that it is your decision. I will not be appealing the decision on the grounds that I feel it will further exacerbate my stress levels and the stress levels of the team. I feel that this incident has created a hugely negative environment for myself and my team and I am interested only in putting this situation behind me, moving on in a positive manner, repairing the damage this incident has done and continuing to do my job to the best of my ability.

I would however request that this letter be placed on record and attached to the file leading to my verbal warning for future reference”.

I note in her final written submission, the Complainant set out that she didn’t have the confidence to bring the issue any further and felt that any appeal would be biased. This assertion was only made post termination of her employment. The request set out in the email of the 11^th August 2014 can only be taken at face value. It set out that the Complainant wanted to put the incident and disciplinary process behind her. It could not be considered an appeal or grievance as is commonly understood. There was no mention in the substantial email of discrimination on the grounds of gender or family status. In her submission, the Complainant set out that the response from the Respondent HR director that she would keep her letter on her personnel file, left the Complainant “feeling unsupported, distressed and anxious and destroyed any faith she had in the company resolving any ongoing concerns that she had”. This were only raised at the hearing of the case and not reconciled with what the Complainant had set out in her email of the 11^th August 2014.

I do not accept it was the case that the managing director stated or implied that the Complainant would have to give up breastfeeding on her return to work. I do not accept that the Respondent wished to prevent the Complainant from breastfeeding and/or expressing. It was accepted by Complainant that the Respondent’s facilities had been reviewed by the Respondent well in advance of her departure on maternity leave. It was accepted by the Complainant that she was provided paid time off to purchase a manual pump and express and paid time off on the same terms as another female staff member had been given in similar circumstances.  

Harassment claim:

Section 14(A) of the Equality Acts broadly provides that harassment is any

“unwanted conduct related to any of the discriminatory grounds”.

Arising from the above, I find that the Complainant has failed to establish a prima facie case of harassment under the Equality Acts.

Victimisation claim:

Section 74(2) of the Employment Equality Act provides:

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,

(b)any proceedings by a complainant,

(g) an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs.

In this case, I cannot find that the complainant raised any complaints with the Respondent linked to her gender or family status while she was in the Respondents employment. Her complaints to the Respondent in May and August 2014 made no link to treatment because of her pregnancy, gender or family status. While the Complainants email of the 11^th August 2014 referred to the effects she felt because of the disciplinary action, she did not link the disciplinary action to being pregnant in the first place. Therefore the Complainant’s actions are not protected for the purposes of Section 74(2) and the complainant does not meet the first part of the test. The complaint under this heading also fails.

Constructive dismissal:

I do not accept that the circumstances regarding the provision or non-provision of breastfeeding/expressing facilities for the Complainant were so exceptional that the Complainant could resign without invoking the Respondent’s grievance procedure.

The Complainant and the HR manager toured the Respondents facilities before the Complainant went on maternity leave. No area was agreed upon by the parties as where the Complainant would use to express on her return to work.

The Complainant returned to work not knowing what facilities would be available. She did not provide formal notice that she was retuning to work on the 3^rd July 2015 and would require expressing facilities. She attended at work with an electric pump and was given time off work to purchase a manual pump. She was advised that she could take paid time off to express. This took place on her first day of work from maternity leave.

On her second day of work, the Complainant did not make contact with her HR manager to discuss any issues she had in connection with her expressing facilities. While the HR manager did not contact her either, if the issue of expressing facilities was not resolved to the Complainant’s satisfaction and was of such importance to the Complainant that she was psychologically stressed, she had an obligation to make this known to the Respondent. The Complainant was in control of this situation. This was her first full day back at work following her maternity leave. The HR manger had looked at expressing facilities with the Complainant before she went on maternity leave and had made a suggestion of a suitable room. While the issue was not resolved before the Complainant went on maternity leave, from a practical level, the issue only arose on her return from maternity leave to the workplace. Under the Maternity Protection (Protection of Mothers who are Breastfeeding) Regulations 2004, the Complainant was required to provide written notice of her intention to breastfeed before her return to work. This was not done. This failure was not raised by the Respondent, possibly for not wanting to appear pedantic; however on a practical level if written notice had been furnished, the Respondent would have been on notice of the matter prior to the Complainants return to the workplace.

It should be noted that under the definition of “employee who is breastfeeding”, in the Maternity Protection (Protection of Mothers who are Breastfeeding) Regulations 2004 only apply in the first six months following confinement. The Respondent did not have any issue with the extension of same.

As regards the role that the Complainant returned to following her maternity leave, she returned to her original seat, alongside her original team members. She was allocated the same work for a different market (Mexico as opposed to Canada). I am satisfied that the role she returned to was within the normal range of variability which the Complainant could reasonably have expected.

I find that the Complainant resigned without giving the Respondent an opportunity to investigate any grievances she had in relation to her breastfeeding/expressing opportunities or her belief that the job she returned to was not her job before she went on maternity leave or an acceptable alternative.

I am satisfied that the Respondent conducted itself in relation to the complainant in a manner which was conducive of maintaining a relationship of mutual trust and confidence. I found the management staff of the Respondent to be professional and credible. When a grievance was brought by the Complainant in April 2014, a process was undertaken to deal with the complaint.

There is a high onus of proof on complainants in making a discriminatory constructive dismissal claim and I find that the complainant did not meet the onus of proof in this case.

According all of the claims brought by the complainant fail.

Dated:   7^th December 2016