EDA161

The Appellant operates a small health and beauty clinic in a rural town. The Appellant employed the Complainant in the role of General Manager on 2 August 2011. On 2 December 2011 the Complainant informed the Respondent that she was three months pregnant. On 9 December the Respondent called the Complainant into her office and presented her with a completed risk assessment and asked her to sign it. She did so. A short meeting ensued. On 13^thDecember 2011 the Respondent advised the Complainant that she was being placed on Health and Safety leave in accordance with Section 18 of the Maternity Protection Act 1994. The respondent objected to this development and insisted she was willing and capable of discharging her duties with some minor accommodations. The Respondent proceeded to give effect to her decision and placed the Complainant on leave. This was confirmed in writing by way of letter dated 13 December 2011. In the letter the Respondent stated

• “This is to confirm our meeting of 9^thDecember 2011, where I met with you to discuss the recent risk assessment completed for your role in the Salon. Due to the findings of this Risk Assessment and the risks associated with this role, which cannot be removed, I have confirmed that you will be required to go on health and Safety leave for your safety and the safety of your baby.

  As we have discussed, under Section 18 of the Maternity Protection Act 1994 I confirm that your Health and Safety leave will be commencing as and from 13^thDecember 2011.

  In addition to this, I confirm that you will receive your normal wages for the first 21 days (3 weeks) of this Health and Safety Leave, from Elaine Byrne Beauty Clinic.

  I would also like to confirm that during this period, your probationary period with Elaine Byrne Beauty Clinic will be suspended and will re-commence upon your return from Maternity Leave.

  Wishing you all the best with the remainder of your pregnancy”

• On balance, the Tribunal accepts that the respondent breached her obligations as an employer as set out in section 18 of the Maternity Protection Act 1994 and the appeal succeeds. In light of this the Tribunal award the sum of €9,701.40 being the remuneration lost to the appellant for the twenty weeks work she was out on leave”

The Equality Officer in a decision issued on 4 August 2015 decided that the complaint was well founded and ordered the Respondent to pay the Complainant compensation in the sum of €12,000. It is that decision and award that was appealed to this Court by the Appellant/Respondent.

Complainant’s Case

The Complainant, through her Solicitor Mr William Egan, told the Court that she was employed by the Respondent in the role of General Manager of a health and beauty clinic. She said that she told the Respondent on 2 December 2011 that she was pregnant. She said that on 9 December 2011 she attended a meeting with the Respondent at which she was presented with a completed risk assessment report and asked to sign it. She said she did so on the understanding that it would have no adverse effect on her employment and that she would continue to work while pregnant. She said that she was advised on 13 December 2011 that as a result of the findings of the risk assessment she was being placed on Health and Safety leave in accordance with Section 18 of the Maternity Protection Act 1994. She said that she disputed that decision and commenced proceedings under the Maternity Protection Act and the current proceedings. She maintains that she was fit to work and that the risks identified in the risk assessment could be worked around and accommodated with minor adjustments to her working arrangements. She submits that the decision to place her on compulsory leave amounted to discriminatory treatment on the gender ground as it was not justified by any requirement of safety and health and arose directly out of her pregnancy.

Respondent’s Case

The Respondent stated, through her representative, Mr Joe Bolger, ESA Consultants, that the Respondent carried out a risk assessment in compliance with her statutory obligations and honestly concluded that the chemicals used in the spray tanning unit in the business, which the Complainant came in contact with, posed a serious threat to the Complainant’s and her unborn baby’s health and safety. She said that she decided that there was no reasonable accommodation that could be made to eliminate the associated risks and accordingly decided that she had no option but to place the Complainant on Health and Safety leave. She stated she replaced the Complainant with her sister who was also pregnant but who was prepared to accept the risks associated with the operation of the tanning equipment. She noted that she did not have the same statutory obligations to her sister, a family member, that she had to the Complainant her employee. She contended that she acted reasonably, in the best interest of the Complainant and her unborn child and in compliance with her obligations under the Safety Health and Welfare at Work Act 2005 and the Maternity Protection Acts 1994 and 2004.

Mr Bolger, for the Complainant stated that there were four grounds on which the appeal rested, namely

• 
  1.The Complainant named the wrong defendant.

  2.The Equality Officer had allowed a large volume of evidence to be introduced at the hearing without notice to the other side.

  3.The Equality Office had not properly considered the technical evidence presented by the Respondent.

  4.The award made by the Equality Officer was excessive and beyond the capacity of the respondent to meet.

In relation to the second ground of appeal Mr Bolger acknowledged that proceedings before the Court were in the nature of ade novohearing of the case and accordingly conceded that the procedure employed by the Equality Officer was not relevant in that context. Accordingly he accepted that the second ground of appeal was no longer before the Court.

In relation to the third ground of appeal Mr Bolger acknowledged that both parties were required to make out the respective cases from first principles and it was not the function of this Court to review the conduct of the Equality Officer. Rather it was its duty to hear all of the evidence on which the complaint was based together with the Appellant’s response and to assess the matter in accordance with the law and to make a decision based on the evidence before it. On that basis he conceded that this ground of appeal was no longer before the Court.

Finally he argued that the level of the award made by the Equality Officer was excessive and should be set aside or considerably reduced by this Court.

With regard to the facts of the case the Court notes that the Employment Appeals Tribunal had in related proceedings considered the material facts in this case and decided that they did not justify the Respondent’s decision to place the Complainant on health and safety leave in accordance with Section 18 of the Maternity Protection Act 2004. The Court enquired of the Complainant whether there was any other evidence to be adduced in this case that was not before the Employment Appeals Tribunal. Mr Bolger told the Court that the material facts in this and the case decided by the Employment Appeals Tribunal were identical. He went on to acknowledge that the Employment Appeals Tribunal had decided that the facts as presented in that case did not justify the Respondent’s decision to place the Complainant on leave for the duration of the pregnancy. He agreed that it was not open to this Court to come to a different conclusion to the Employment Appeals Tribunal, which decision had not been appealed, in relation to those facts. He accepted that the Respondent’s decision to place the Complainant on unpaid leave for the duration of the pregnancy was, as per the un-appealed decision of the Employment Appeals Tribunal, an infringement of her rights under the Maternity Protection Act 2004. Mr Bolger further accepted that the infringement also amounted to discrimination under the Employment Equality Acts as claimed by the Complainant. He contended thereafter in his submissions to the Court that the only remaining matter before the Court was the award made by the Equality Officer which he said was excessive and should be reduced in line with the Respondent’s capacity to pay.

On behalf of the Complainant, who had not appealed the Equality Officer’s decision, Mr. Egan noted the concessions made by Mr Bolger. He contended that the Court had no evidence before it regarding the Appellant’s capacity to pay other than the assertions made by Mr Bolger. He submitted that the Court should lend no weight to Mr Bolger’s submissions unless and until evidence of the Respondent’s financial capacity was placed before it. Mr. Egan further submitted that the compensation ordered by the Equality Officer was at the lower end of the scale and was conservative. He asked the Court to consider increasing the award in light of the circumstances. In the alternative, he asked the Court to uphold the decision of the Equality Officer.

As the facts of the case are not in issue and noting the decision of the Employment Appeals Tribunal that the decision to place the Complainant on compulsory leave was not justified and amounted to a breach of the Maternity Protection Act 2004, the Court finds that the Appellant’s/Respondent’s actions in so doing amounts to discrimination within the meaning of section 6 of the Act contrary to section 8(1) of the Act. Accordingly the Court finds that the complaint is well founded and determines accordingly.

The Court has considered the submissions of both parties on the matter of redress. In that regard it is well settled that the financial capacity of a respondent is not the sole determining factor in deciding the level of compensation in cases such as this. The Court addressed this question in Watters Garden World Limited and Lurie Panuta EDA098 where it said

• The Respondent contends that the award of the Equality Officer is excessive in all the circumstances. In advancing that argument reliance is placed on the poor financial circumstances of the Respondent and its claimed inability to meet the award. It is also pointed out that the Complainant did not suffer any pecuniary loss in consequence of the matters of which he makes complaint.

  There is no support in authority or in statute for the proposition that the Court should have regard to the financial circumstances of a Respondent in measuring the quantum of compensation to which a successful Complainant is entitled. Section 82(1)(c) of the Act merely provides that the Court may make “an order for compensation for the effects of acts of discrimination or victimisation….”. Article 15 of Directive 2000/43/EC (the Race Directive) and Article 17 of Directive 2000/78/EC (the Framework Directive) provides that compensation must be“effective, proportionate and dissuasive”.While the size of any award intended to have dissuasive effect may, for its effectiveness, have to take account of the financial capacity of an enterprise, the other elements of the award are related solely to the pecuniary loss suffered by the Complainant and the gravity of the transgression. The financial capacity of the Respondent is neither an aggravating nor a mitigating factor in measuring compensation under those headings.

The law affords special protection to women during pregnancy. It does so in order to protect the health and financial wellbeing of both mother and child. Any unlawful action that compromises a mother’s health or wellbeing cannot be treated lightly or disregarded by the Court. To do so would have the effect of removing the protection that the law provides to women during pregnancy. The Court must address the matter before it in that context taking into account the facts of this case.

Having considered all of the evidence before it and having taken into account the financial loss suffered by the Complainant, the fact that the loss was fully restored to her through separate proceedings under the Maternity Protection Act 2004, the denial of the Complainant’s rights and the acts of discrimination involved, the Court has decided that the award made by the Equality Officer is proportionate and reasonable in all the circumstances of this case and determines accordingly.

Determination

The Complaint of discrimination is well founded. The Court affirms the decision of the Equality Officer and determines accordingly.

The Court orders the Respondent to pay the Complainant compensation in the sum of €12,000.

The appeal is not allowed. The Court so determines.

Signed on behalf of the Labour Court



Brendan Hayes
CO'R______________________
20th January 2016Deputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Clodagh O'Reilly, Court Secretary.