DEC-E2016-080

EMPLOYMENT EQUALITY ACTS 

DECISION NO. DEC-E2016-080 

PARTIES 

An Employee 

-v- 

An Employer

(Represented by Peninsula Business Services Ireland)

File reference: EE/2013/585

Date of issue:     May 2016

HEADNOTES: Employment Equality Acts Sections 6 and 8 – Gender and Family Status in relation to Conditions of Employment.

1   DISPUTE

1. This dispute concerns a claim by Ms A that she was discriminated against by Respondent X on Gender and Family Status grounds contrary to section 6 (2) of the Employment Equality Acts.
2. The Complainant referred her claim to the Director of the Equality Tribunal on the 29^th October 2013 under the Employment Equality Acts. On the 9^th June 2015, in accordance with his powers under section 75 of the Acts, the Director delegated the case to me, Michael McEntee, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts, on which date my investigation commenced. Submissions were received from both sides and in accordance with Section 79(1) of the Acts and as part of my investigation I proceeded to a hearing on the 17^th June 2015. Additional information requested from the Respondent was received in July 2015 and an additional hearing took place on the 21^st April 2016.

2   COMPLAINANTS' SUBMISSION

2:1 The Complainant started work for the respondent in 2006 as a Merchandiser. She was made redundant in 2008 but was shortly afterwards reemployed by the Respondent, latterly being a part time Sale Support Executive. Her employment ended on the 16^th August 2013 by reason of Redundancy.

During her employment Ms. A had two periods of maternity leave, June 2011 to Jan 2012 and November 2012 to June 2013.

After her second period of maternity leave her position as a part time Sales Support Executive was, as part of a business reorganisation, made redundant and she was offered a trial period as a full time Sales Support Executive.

In August 2013 she took Redundancy.

The Complainant identified four issues in her submission.

Issue One: Delayed date of Pregnancy Risk Assessment.

1. ^th Week of her second pregnancy and only after she had an accident. She was immediately placed on Health and Safety Leave. Ms. A submitted that the late Risk Assessment was Discrimination on Gender Grounds.

Issue No 2; Time for Appeal of Grievance

During the H&S Leave referred to during the second pregnancy Ms. A lodged a Grievance against the Respondent Employer. The written outcome of the Grievance came on the 27^th November 2012. The issue of an Appeal was discussed and the Respondent granted her six weeks to appeal. Ms. A submitted in effect that the appeal should effectively have been postponed until after her maternity leave concluded.

To insist on her appealing, the Grievance decision while on maternity leave was Discriminatory on Gender Grounds.

Issue No 3: Non granting of Health and Safety Leave during her first Pregnancy.

1. ^th December 2010. The results were not shared with her, nor was she given a copy to discuss with her GP. The Assessment stated “H&S Leave – at a later date.”

Being unaware of the outcome of the Assessment she continued working during the pregnancy. She gave up work early due to pain arising from the heavy workload.

The Respondent discriminated against her by withholding her H&S Assessment results and “conned her out” of time off – again Discriminatory on gender Grounds.

Issue No 4: Effectively creating a situation where Ms. A felt compelled to take Redundancy

The new full time roles had few Females employees and she contended that things were made difficult for her during the trial period in a bid to convince her that the job was not suitable for a working mother reliant on childcare. She maintained that she had been “coerced” into taking the redundancy on offer.

3        RESPONDENT'S SUBMISSION

3:1       Opening Issue: Time Limits.

The Respondent raised an Opening issue in relation to time limits.

It was their contention that while Issue No 4 was in time Issues no 1, 2 and 3 were either outside of the 12-month exclusion (Issue no 3) or were with the 6 to 12-month period - issues 1 and 2. It was their contention that only issue no 4 should be considered.

For ease of reference the Respondent also used the Complainant’s listing of issues as set out above.

3:2       Issue One: Delayed date of Pregnancy Risk Assessment

The Respondent replied in detail to this allegation. The Respondent had a clear and well publicised maternity leave policy. The Respondent stated that the organisation, at Management and HR level, had not become aware of the Complainant’s pregnancy until late in the period. Once they were aware at the relevant level, a Risk Assessment was carried out. The Respondent pointed out that there had been a change in Management Personnel and the relevant Manager may not have been familiar with the requirements in a Pregnancy situation. It was described as an oversight. The Respondent had provided help to the Complainant when requested to do so.

The situation was complicated by the confused situation regarding the Complainant’s sister being offered /not offered a temporary position to cover the Complainant’s maternity leave. The Respondent submitted that the non-employment of the Complainant’s sister was the real grievance of the Complainant and the discrimination element was accordingly not a genuine Equality claim. Likewise, the changes in the Complainant’s working hours were an aggravating factor in the relationship but this did not have any Gender elements.

In summary the Respondent submitted that the Complainant had failed to produce Prima Facie evidence of discrimination on the grounds of Gender to sustain the claim.

3:3       Issue No 2; Time for Appeal of Grievance

The Responded submitted that the extension of the period (from seven days to six weeks) to submit an Appeal against the Grievance finding as opposed to postponing the entire process until after the maternity leave period, was not discriminatory. The Respondent granted the extension but pointed out that the correspondence showed that the Complainant was not being asked to physically attend a meeting just to state the grounds of her appeal. E mail traffic, copied in the Submission, with Mr. D in HR, refer. The Complainant submitted her grievance two weeks before the commencement of her maternity leave – it was not unreasonable to expect the process to run into her maternity leave period. The Respondent did not want to have the Grievance and Appeal be unnecessarily protracted and the request was for the grounds of the appeal only. An actual hearing could have taken place on the Complainant’s return. E Mail traffic on this matter is copied in the Submissions.

The Respondent did not feel that there were any discriminatory gender Grounds in the manner the request for the Appeal was handled.

3:4       Issue No 3: Non granting of Health and Safety Leave during her first Pregnancy.

The Respondent submitted that there is a time lapse of over four years since the incidents referred to took place. Key witnesses are no longer available. The Complainant had been unable to provide evidence as to how the incidents resulted in gender discrimination. At best the Respondent felt that the possibility existed of an administrative error in the manner the Risk Assessment had been handled. The Risk Assessment has simply included a hand written note stating “Health and Safety leave at a later date”. At this temporal remove it could not be ascertained whether the actual leave should have been granted or indeed when. The Complainant had not provided sufficient details of witnesses to support her claim that she was forced to give up work early.

In summary the Respondent submitted that the Claimant had not provided any substantial proof of a Gender discrimination claim in this case.

3:5       Issue No 4: Effectively creating a situation where Ms. A felt compelled to take Redundancy

The Respondent submitted that the Complainant had failed to establish any link between her gender and family status and her decision to take Redundancy.

The Respondent had offered the Complainant an alternative role, on a trial basis, following the effective ending of the part time positions.

Details were provided of the Commercial situation (including a staff briefing note) that had given rise to the business reorganisation. The Respondent amended the call file or work schedule of the job in an effort to facilitate the Complaint’s concerns. Regardless she turned down the job and requested Redundancy.

At no time during this trial period did the Complainant raise any concerns in relation to her family status or previous pregnancies nor did she raise a grievance in relation to the matters concerned.

The Respondent again submitted that there was no substantial evidence of any linkage between the Redundancy and the Family Status of the Complainant.

3:6       All four Issues /Closing Comments

The Respondent submitted that in all four instances referred to there had been no infringement of the principle of equal treatment. The Complainant was not treated poorly, differently or less favourably on the basis of her gender or family status.

4  FINDINGS & CONCLUSIONS OF THE EQUALITY OFFICER

4. Time Limits issue:

The Complainant contested the Respondent arguments and pointed to her being on Maternity leave twice during the periods covered and also that information in relation to Issue No 3 (H & S leave during the first Pregnancy) - the issue alleged by the Respondent to be outside the 12-month period - did not come to her notice until after

Issue no 2 had been in contention.

As guidance in making my decision I referred to the Labour Court Determination EDA 1124 Hurley v County Cork VEC which stated:

“that in order for acts or omissions outside the time limit to be taken into account there must have been acts or omissions of victimisation (or discrimination) within the time limit. There can be practical difficulties in applying that provision. There must be some reality in the claim that acts of victimisation actually occurred within the limitation period. Otherwise a complainant could revive a claim which had been extinguished by the time limit simply by raising an additional related claim, no matter how tenuous, within the time limit.”

Proceeding to then consider all the available evidence, both oral and written, I found that Complainant Issues No 1 - Delayed Risk Assessment Second Pregnancy, No 2 – Time Limits on Appeal during maternity leave and No 3 – H & S Notification during the first maternity leave would be encompassed by the principle set out in the decision above EDA 1124 Hurley v County Cork VEC.

Accordingly, I decided to consider all four issues in the claim.

4. Consideration of the Claim

In a case of this nature the first issue to be considered is the Burden of Proof argument.

The Labour Court in EDA0917 Melbury v Valpeters set out the basic position clearly.

Conclusions of the Court

Section 85A of the Act provides for the allocation of the probative burden in cases within its ambit. This requires that the Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. 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.

Accordingly taking all the materials presented both orally and in submissions the prima facie evidence to substantiate a claim of Discriminatory treatment has to be clearly identified if the claim is to succeed.

4.     Issue One: Delayed date of Pregnancy Risk Assessment

The delayed nature of the Risk Assessment during the second pregnancy appeared in evidence to be more of an administrative blunder by Management staff. The Company had well developed Maternity Policies.   The Complainant had a Risk Assessment carried out during her first pregnancy and would therefore have been aware of the procedures involved. She could have brought a request to the attention of her Manager. The entire issue on the ground, was as well, coloured by the circumstances of the employment/non employment of the Complainant’s sister.

Reading the evidence in the extensive email traffic and listening to the oral evidence it is hard to see where there was any deliberate attempt at direct or indirect Discrimination. Lack of effective communication between parties and management mix ups are not in themselves discriminatory.

Accordingly, having reviewed all the evidence both oral and written, I could not find the necessary prima facie evidence of discrimination on Gender or Family status grounds and accordingly I do not find this element of the claim well founded.

4:4       Issue No 2: Time for Appeal of Grievance

While it has to be stated, as set out by the Labour Court, that the entire period of a Pregnancy is a “Special Protected period” it does not follow that a request to provide a brief statement of the grounds to be relied on in an appeal is precluded. The Complainant was a very competent witness and never suggested that replying to the occasional Respondent emails was a major burden that she could not handle. She actually stated that she lodged the Appeal while she was on Health and Safety Leave – albeit the Grievance decision had issued in the same period.

The normal period of 7 seven days to lodge an appeal was extended by the Respondent to six weeks and in written evidence it was stated that what was being sought was the grounds of an appeal – not an actual Appeal hearing which could be delayed until the parties felt it suitable. The E mails from Mr D of HR to the Complainant (E mail copy ref 12/04/2012) stated:

“The meeting itself does not need to take place unless you feel you would like to go ahead yourself, however we would preferably like to have the information at that stage”.

The Complainant was in communication with Mr. D from the HR department by E mail and was clearly not incapacitated from an e mail communication point of view. There was no Medical evidence of any incapacity that would have precluded the Complainant composing an E mail in the general terms requested by the Respondent. The Complaint could have requested a further extension of the time period – in her mail of reply to Mr. D’s mail refer to above from HR she stated “she would try her best” to get a reply put together. The approach of the Respondent was quite relaxed, Mr. D from HR gave oral evidence to this effect, and could not be seen to be putting undue pressure on a lady on maternity leave. The Complainant stated that she then “decided to leave things as they stood” and did not pursue the Appeal. I found, from her written evidence that this was more due to a lack of confidence in the Grievance process itself rather than any matters relating to her pregnancy.

Accordingly, having reviewed all the evidence both oral and written, I could not find the necessary prima facie evidence of Direct or Indirect discrimination by the Respondent related to the Gender or Family Status / Pregnancy of the Complainant.

I do not find this element of the claim well founded.

4:5       Issue No 3: Non granting of Health and Safety Leave during her first Pregnancy.

While the EDA 1124 Hurley v County Cork VEC. determination was referred to above in the consideration of Time Limits it has to be stated that the incident referred to took place very late in 2009. The consideration of the evidence, which is purely a hand written note on a Risk Assessment Form from that time, can only be limited. The author of the form was not available as the person concerned had left the employment of the Respondent some years previously. The timing and or granting of the Health and Safety leave could only be seen realistically in terms of medical evidence available at that time. No such evidence was available to either party. Realistically this element of the Claim has to be circumscribed due to a lack of any available evidence to support either side.

Accordingly, having reviewed all the evidence both oral and written, I could not find the necessary prima facie evidence of discrimination on the Gender or Family Status grounds.

I do not find this element of the claim well founded.

4:6       Issue No 4: Effectively creating a situation where Ms. A felt compelled to take Redundancy

There was no dispute that the Commercial landscape facing the Respondent Company had changed considerably during the latter half of 2012. The briefing document of January 2013, presented in evidence, is clear on this. Among the Management steps taken was replacing all Part Time Sales Executives by a smaller number of Full Time positions. The Complainant was offered a new full time role.

The issue before me therefore is clearly is one of deciding whether or not there were prima facie grounds in this process to sustain a claim for Direct or Indirect Discrimination as maintained by the Complainant.

Direct Gender discrimination was not an issue as all genders were represented in the new staff organisation.

Indirect Discrimination on Gender /Family status grounds when there is a complete change over from part time to full time work is another area. There is considerable Labour Court and higher Court precedents in this area.

4:7       The body of case law on this area is now quite large. It is discussed extensively in Meenan, Employment Law, 2014 and Bolger, Bruton and Kimber, Employment Equality Law, 2012.

The landmark Labour Court decision in this area is Marie Inoue v NBK Designs Ltd - EED 0212 / 2002

In summary the Labour Court determined (as set out in the Summary given in [2003] 14 E.L.R. 98 ELR

Determined

by the Labour Court:

(1) Deciding whether the claimant has proved in evidence that a requirement to act full-time impacts more significantly on women than men, gives rise to the question of whether an expert tribunal can reach conclusions by relying on the knowledge and experience of its members, without any evidence being adduced on the point. This question does not appear to have been previously considered by the Court.

(2) The procedures of this Court are intended to facilitate parties. It would be alien to the ethos of this Court to oblige parties to undertake the inconvenience and expense involved in producing elaborate statistical evidence to prove matters which are obvious to the members of the Court by drawing on their own knowledge and experience.

(3) The provision introduced by the respondent, which would have required the complainant to work full-time, amounted, prima facie, to indirect discrimination contrary to section 22 of the Employment Equality Act 1998.

(4) The court is satisfied that the requirement is not necessary and appropriate and cannot be justified by objective factors unrelated to the complainant's sex. (Bilka-Kaufhaus GmbH v Karin Weber von Hartz Case 170/84 [1986] *99 ECR 1607 applied).

(5) The complainant was thus indirectly discriminated against on the gender ground and by reference to her family status and marital status, within the meaning of section 22(1) and contrary to section 8 of the Act.

(6) The appropriate remedy is an award of compensation. The claimant's actual loss was €1,400. However, the court being conscious of the need to provide redress which is effective, proportionate and dissuasive, awarded the complainant €10,000.

Cases referred to in the determination

• Bilka-Kaufhaus GmbH v Karin Weber von Hartz Case 170/84 [1986] ECR 1607
• Briggs v North Eastern Education and Library Board [1990] IRLR 181
• Clymo v Wandsworth London Borough Council [1989] IRLR 241
• Conlon v University of Limerick and the Minister for Enterprise and Employment [1999] ELR 155
• Nathan v Bailey Gibson [1998] 2 IR 162
• Perera v Civil Service Commission [1982] IRLR 147
• Price v Civil Service Commission [1977] IRLR 291

4:8       Section 22 of the Employment Equality Act ,1998 refers and is quoted below.

Indirect discrimination on the gender ground.

 (b) Where paragraph (a) applies, the employer shall be treated for the purposes of this Act as discriminating against each of the persons referred to (including A or B), unless the provision is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.

4:9       Reviewing the evidence both written and oral from very convincing and forthright witnesses the evidence points strongly to the fact that the staff reorganisation was legitimately business driven. The complete abolition / redundancy of the part time staff – effectively the abolition of the Part Time Sales Support Executive position and its replacement by full time staff was a key part of Management’s business strategy.

However, it is hard to see where any consideration was given by the Respondent to the impact of the changed working conditions, from part time to full time, on the Gender and Family Status issues of the staff. The requirement to effectively “Discrimination proof” an “apparently neutral provision -section 22 (1) a, above” did not appear in any evidence.

At the Second Oral hearing the selection process for the Redundancies and the New Roles was explained by the Respondent. Two criteria were used – namely (1) Length of Service and (2) Geographic Location of the staff member v/v the likely spread of the workload.

There was no evidence presented that the possibility of any Direct or Indirect Discrimination on Gender or Family Status grounds in the process was considered.

Supplementary statistics requested from the Respondent indicated that while no records were maintained of family status of the staff, (which I find surprising as the Respondent has a Pension Scheme and a Health Insurance Scheme, albeit not for all staff and a good electronic HR system) the % of females prior to the Reorganisation was 37% which dropped to 26% post reorganisation.

As the Labour Court has pointed out on many occasions part time work is more likely to attract females with family responsibilities and its abolition will always impact disproportionally on females. In the case referred to above, Marie Inoue v NBK Designs Ltd - EED 0212 / 2002 this point is made clearly. The abolition of part time work to be replaced by full time work has always to be grounded in strong objective arguments which can counter effectively any discrimination arguments.

From all the evidence considered I could not find any Objective justification given by the Respondent to any possible Discriminatory outcomes.

4:10 The Complainant, gave the trial period in the full time job a good effort but eventually opted for redundancy. The evidence given pointed to a situation that was difficult for any staff member with family and or childcare responsibilities. The hours of work, starting/finishing times etc., time to arrive at particular sales locations tied to flexible / uncertain goods deliveries by truck etc. all appeared to be very unclear and would certainly appear quite challenging for a staff member with childcare arrangements.

Various other options such as continuing Part Time work on Family Status grounds were not considered by the Respondent but in mitigation it appears that the Complainant did not use the normal internal channels to raise this as a formal grievance.

4:11     The Complainant did not claim Dismissal on the Grounds of Gender discrimination but in her oral evidence made it clear that she felt that she had been effectively left without options other than Redundancy.

She was a very competent witness and was well used to using the internal Grievance procedures. While she was on a trial period and this has some mitigation in her favour the non-use of the internal procedure prior to taking the Redundancy has to be considered as relevant.

In the final analysis it was a Voluntary programme that she chose, of her own volition, to avail of.

4:12 Taking all the reasons set out above and having carefully reviewed all the evidence, both oral and written, the conclusion has to be, that there was sufficient prima facie evidence to support a claim of Indirect Discrimination on Gender and Family Status grounds.

Accordingly, I find the claim of Discrimination on Gender and Family Status in relation to Conditions of Employment well founded in relation to issue number four of her overall case.

 5 Decision

5:1 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.

5:2

• The Complainant has failed to establish a prima facie case of discrimination in relation to Conditions of Employment on the grounds of family status or gender in relation to Issues One, Two and Three of the Complaint.
• In relation to Issue Four I find that the Complainant was discriminated against on gender and family status grounds in relation to Conditions of Employment
• Accordingly, and bearing in mind that the Complainant accepted a Voluntary Redundancy package, I award the sum of €6,500 (approximately 26 weeks’ pay) as Compensation for Discrimination in relation to Issue Four of her claim.
• As this is a Compensation Payment it does not, subject to Revenue approval, attract taxation.

____________________

Michael McEntee

Equality Officer

     May 2016