EMPLOYMENT EQUALITY ACTS
DECISION NO: DEC-E2016-087
Ms Mary White
(Represented by Citizens Information Services ltd.)
And
Glanmire Residential Care Ltd.
File No: EE/2013/352
Date of Issue: 8th June 2016
1. The Dispute
1.1The dispute concerns a claim by Ms Mary White that Glanmire Residential Care Ltd discriminated against her on the grounds of gender in relation to her pregnancy contrary to Section 6(2)(a) and Section 8.1 of the Employment Equality Acts 1998 to 2011. In addition, the complainant made a complaint of Harassment contrary to Section 14 of the Acts.
1.2 The Complainant referred her complaint under the Employment Equality Acts 1998 to 2011 to the Director of the Equality Tribunal on 2 August, 2013.A submission was received from the complainant on 4 August, 2015. A submission was received from the respondent on 24 September, 2015. On 29 February, 2016, in accordance with his powers Sec 75 of the Acts, the Director General of the Workplace Relations Commission delegated the case to me, Patsy Doyle, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under part VII of the Acts. On this date, my investigation commenced. As required under S79(1) of the Acts and as part of my investigation, I proceeded to hold a joint hearing of the case on 13 March 2016. Supplementary information was sought from the respondent, which was received on March 29 2016, which was passed to the complainant and commented upon promptly.
1.3 This decision is issued by me following the establishment of the Workplace Relations Commission on the 1st October 2015, as an Adjudication Officer who was an Equality Officer prior to the 1st October 2015, in accordance with section 83 (3) of the Workplace Relations Act 2015.
2. Summary of the Complainant’s Submission
2.1 The complainant commenced work as a part time cleaner, working 20 hours per week, on 28 November 2011, at the respondent nursing home. Her core hours were 8.30 am to 1.30 pm or 11am to 4 pm. It was a permanent position. There were three cleaners on the team MH, who worked opposite the complainant and MM who had recently been employed to work weekends.
In or around 24th January, 2013, the complainant informed the Director of Nursing(AMR) that she was three months pregnant and due on July 17th ,2013. Shortly afterwards, the complainant recalled a change in the approach of the Director of Nursing towards her, where she had previously been complimented on her work, she was now aware of repeated criticisms, which puzzled her.
She recalled that she felt fine, but was troubled by the references of the Director to her ability to work and her age. This was the complainant’s fifth pregnancy and she was 32 years old. The Complainant volunteered to submit to spot checks of her work by management but this was not availed of.
2.2 In the wake of a HIQA inspection on March 5th, the complainant was blamed for a series of cleaning omissions involving dust on pictures and mould on a sink. On March 13th, The Director of Nursing called the complainant to a meeting on her own, during this interaction, the complainant heard that she was unfit to work and was sent home on sick leave, understanding that her “sore back” prevented her from working. She was removed from the roster and was recommended to consult her G.P. The complainant followed this up with the Manager of the home, as she wanted to get back to work, but her calls were unanswered.
2.3 On 21 March, the complainant attended the Nursing Home and met with the Director again, this time, she was given a partially completed pregnancy risk assessment and a letter for her GP. The letter stated that
“At present, Mary is unable to carry out her required duties as per her job description. Such as moving furniture and high cleaning, involving bending and stretching over a continuous period. It is therefore not in her best interests to carry on this job at the present time”
2.4 The Complainant visited her GP and received a one-line endorsement of her fitness to work on 21 March 2013.
“The above lady is a patient of mine for a number of years. She is currently 23 weeks pregnant and she is fit for work. Please take this into account “
In addition, The GP recorded that there “were no modifications necessary to work “on the Medical component of the pro-offered risk assessment. These documents were forwarded to the respondent.
2.5 The complainant met with her Manager, (MOS) the owner of the nursing home on Friday 22 March 2013, she requested to be returned to the roster, or failing that that she could undertake lighter duties. Both were denied to her on grounds of her condition. The complainant became upset and felt that she had no option but to go home. It was subsequently revealed that her position had in fact been replaced and given to MM on the cleaning team.
2.6 The complainant was prevented from applying for Illness Benefit from DSP, given the status of the GP pronouncement and made an application for Maternity Benefit, which was unsuccessful, given the timeframes involved i.e. the date of 13 March was inserted by her Manager as the last date worked. The DSP recommended that she apply for Health and Safety leave to bridge the gap for entitlement to maternity benefit (first 21 days paid by the employer). The complainant phoned the respondent to explain her predicament and seeking support for Health and Safety leave, this was refused. The complainant made it clear to the respondent that her position was compromised without the Health and Safety leave as she was unable to resubmit for maternity benefit without it.
2.7 The Complainant took advice from Citizens information and submitted a Data Request on June 26th seeking access to “any information you keep about me on computer or in manual form” in addition to access to the staff handbook on pregnancy, bullying and harassment policies at the home. This was ignored. She received a P45 in September 2013, which recorded 13 March as the last date worked.
2.8 The Complainants earnings had stood at €687 per week inclusive of Social Welfare supports. After her position was gone, she received €307.20 from DSP, which increased to €337 on the birth of her fifth child. Her loss was quantified by her representatives as €39,520 over two years. The complainant was unable to mitigate her loss due to her active pregnancy and subsequently she was deemed the sole carer for her five children through the breakup of her relationship.
2.9 The Complainants’ representatives wished to be heard on the following contentions:
That the complainant had been discriminated and harassed due to her pregnancy which had a devastating effect on her. She had suffered stress and depression, requiring counselling. She was made to feel that pregnancy was an illness. She was questioned on her standards of work and blemished what had been an impeccable work record. Caused division within the workforce. She suffered significant financial loss and relationship breakdown. They submitted that the respondent had failed to manage the situation or afford the complainant fair procedures The Complainant sought maximum compensation to include a figure in respect of distress suffered in consequence of discrimination which is prohibited by EU law.
Cases Relied on:
Assico Assembly Limited vs Corcoran EED/033/2003
Webb v Emo Air Cargo(UK) ltd
Brown v Rentokill ltd
Trailer Care Holdings ltd v Deborah Healy
Evidence of the Complainant:
The complainant was hired by MOS. (Owner of the Nursing Home) She had a comprehensive background in domestic work, where she had gained several qualifications. She had previously worked on the cleaning staff of a city hospital, where she managed to work until 38.5 weeks prior to maternity leave. She recalled March 13th, 2013, when she met AMR, Director of Nursing, who put it across to her that the cleaners were making complaints about her, saying that she was not capable of doing the job as she was pregnant. Her daughter had had an accident in January 2013 and she was given two days off and the respondent was very understanding. This changed environment worried her.
She described her job as a passion that she was extremely keen on doing, but was struck by the negative response of her co–workers to her work. She was told to go home on March 13th by AMR and repeatedly tried to contact MOS, the owner from 13-21 March. She was handed forms by the respondent on 21 March, this was the pregnancy risk assessment form and she was reviewed by her GP who recommended that she resume work, without restrictions.
The complainant contacted MOS after the GP review, but the phone was hung up. She made an appointment to meet with MOS on 22 March to seek a return to work. MOS told her, that she was worried that she might get a prolapse if she continued working and that she should consider changing doctors. The complainant had attended her GP from 18 years of age and did not want to change. She asked if she could work in the kitchen as the owner’s son was leaving, thus creating a vacancy. MOS informed the complainant that there was no work and she was asked to leave the building.
She sought the support of DSP for both maternity benefit and Health and safety benefit but was unsuccessful. “Everything fell apart” after this, she lost confidence and her relationship broke down.
When cross examined by the respondent, the complainant denied that her description of events was grossly exaggerated and recalled that her GP had told her that MOS had called him, which in turn prompted him to issue his letter of 25th April, 2013.
“The above lady attended my surgery on 21/3/13, she stated that her employer would not allow her to work due to pregnancy, I passed her fit to work and provided her with a letter confirming this. Her employer followed up with a phone call and I confirmed that Mary was fit to work.”
The complainant rejected the respondent contention that documentation on her medical status was not furnished to the respondent. She reaffirmed that DSP benefits were denied to her because of the lack of cooperation of the respondent.
3. SUBMISSION ON BEHALF OF THE RESPONDENT
3.1 The respondent disputes all claims of discrimination and harassment. A two-page response to the complainant’s submission was furnished on 24 September 2015. This submitted that the complainant had walked out of her job due to a dispute with co-workers on 13 March 2013. The respondent submitted that she assumed that she had resigned when she didn’t turn up for her rostered shift on March 21, her job ceased on that day as when the complainant did come to work on March 22nd, she had been replaced. The complainant’s pregnancy was not discussed by management.
The respondent submitted an extract from the complainant’s employment file dated March 13, 2013, which detailed that the complainant had sought unacceptable changes to work practices and hours. When these were refused, she walked out of the building.
Further detail was submitted from March 22, 2013 file entry:
“Having not turned up for her rostered shift of 21st March, Mary White came into the office on 22nd where she spoke to MOS and AMR and she said that she wished to return to work. AMR explained to Mary that she would need to improve on her work practices in relation to the highlighted issues in the HIQA report and also that her colleagues had not altered their positions in relation to changing hours and work practices; this did not please Mary to hear, she left the building and did not return “
The Business was taken over on 31 March 2015, following a period of closure from 2 October 2014. The property is leased to the current tenants.
3.2 MOS was both the Director of Operations and Registered provider at the nursing home. She recalled hearing that the complainant was pregnant sometime around Christmas 2012. She understood that the complainant was a single parent and was having difficulties with child minding. She contended that the complainant was utterly unreliable and that there no evidence of pregnancy being mentioned at any time.
Delegated responsibility for management of the cleaning team lay with AMR, Director of Nursing and her deputy Ms E. The respondent recalled that AMR sought her out to discuss the cleaning difficulties faced by the team, where complaints were raised about the complainant.
The proposed solution meant that the complainant would have to stay out of work, and MM would cover her hours. The nursing home was busy and MOS said that “staff are very important “. She denied terminating the complainant’s employment.
3.3 In cross examination, MOS, the respondent, confirmed that she had signed the risk assessment but did not recall sending it to the GP. She signed the form as a qualified nurse. She recalled discussing the case with the GP but was unclear on the content of the conversation. She denied asking the complainant to leave the premises on 22 March and interpreted her departure as “she dismissed herself”.
She mentioned a previous disciplinary action taken against the complainant but was unable to furnish concrete details. She wasn’t aware of any specific policies on pregnancy, but understood that there was a Safety Statement on Pregnancy in the Laundry of the home.
3.4 The Business was taken over on 31 March 2015, following a period of closure from 2 October 2014. The property is leased to the current tenants. This whole period was very stressful to the respondent as the “business was up in the air “for a considerable period of time. The respondent made two submissions on not having the financial means at their disposal in the event that the Equality Officer made an award against the company.
3.5 At the conclusion of the hearing, to assist in the investigation, the respondent agreed to furnish two pieces of supplementary information
1. Details of records of all communications and all meetings held by the respondent with the complainant during the period March 13 2013- September, 2013(When the P45 issued)
2. Details of the Equality/Pregnancy Policy operational in the named workplace.
3.6 This was submitted on March 29th, 2016. I will return to this in my findings and conclusions.
3.7 On 31 March 2016, The WRC was notified by Thomas Coughlan Solicitors that they were now on record for the respondent and had an interest in the matter.
4 Evidence of AMR, Director of Nursing
4.1 The complainant informed her of her pregnancy on 24 January, 2013. AMR gave evidence of having health concerns surrounding the complainant, which emanated from her pregnancy and the dissatisfaction coming from the cleaning team. She called a meeting with the three cleaners and suggested that it wasn’t reasonable for the complainant to move furniture or pull out wardrobes. She suggested that discussions take place over the re-allocation of these jobs but no agreement followed and the complainant walked out of the meeting.
The complainant had requested to see the complaints that had been made against her, but these were not in writing. AMR considered re-allocating some of the work and considered allowing the complainant to work in the kitchen but here were no hours and she was not HACCP trained She completed part of a risk assessment and was requested by the complainant to write a note to DSP in order for the complainant to get access to either Illness Benefit or Maternity Benefit earlier.
4.2 AMR recalled some personal difficulties experienced by the complainant at around this time and there were some periods of unreliability which proved difficult for the business, but she did not have any supporting documentation as she no longer worked at the home.
4.3 AMR recalled the complainant saying that “she was fit for work”. She was not aware of any allegations against the complainant or disciplinary action. There were no records or minutes of any meeting and she wasn’t involved after that.
4.4 In cross examination, AMR confirmed that the high dusting could have been done by the caretaker. She recalled that the complainant had actually introduced high dusting from her experience at another hospital, but those beds were on wheels.
4.5 AMR confirmed that she had not told the complainant to leave her job, she understood that there was a risk to her safety at the home because of her pregnancy and she had incorporated that notification of risk in the risk assessment on page 3. She did not engage with the complainant on the outcome of the risk assessment. She did not recall meeting her after March 21, 2013. Nobody told AMR that the complainant had left.” We just took on the extra hours”.
5 Evidence of MM, Cleaning Team
5.1 MM worked with the complainant on the cleaning team and recalled that she complained a lot about her back pain during her pregnancy. She also recollected that the complainant had a high absence rate, where she was asked to cover for her. She also recalled that the complainant was stressed and tired and that she couldn’t understand her behaviour. She recalled an incident where a trolley was prepared and the complainant just left work, saying her sister was sick. She understood that she was being called on to cover the complainant more and more.
5.2 She recalled the meeting of March 13th and determined that it was necessary. A proposed new roster was discussed but no agreement was reached.
5.3 In cross examination, the witness was challenged on her failure to identify any time frame for her recollections. She replied that it was 3 years ago and she wasn’t the line manager. She reaffirmed that the complainant had a high absence rate and that she was replaced by a Hungarian cleaner called Violet after 3 months, but in the meantime, she had covered her hours. She had not reported any of her concerns about the complainant to management.
6 Findings and Conclusions of the Equality/Adjudication Officer.
6.1There are two issues for me to decide in this case:
(1) Whether the complainant was discriminated against on gender grounds in terms of her conditions of employment in the course of her employment with the respondent, and
(2) Whether the complainant was harassed within the meaning of S.14A of the Act.
I have considered all aspects of this case carefully, inclusive of written and oral submissions from both parties. At the hearing, I was particularly mindful that the respondent was representing her company herself, while the complainant had professional representation. I endeavoured to explain the procedures to both parties, allowing ample time for both parties to seek clarifications or submit additional evidence or commentary to ensure an equality of arms and thus a fair hearing.
6.2 There was an abundance of conflict in the evidence adduced in this case and I believe it is important, at the outset that I seek to establish findings of fact based on the balance of probability. I have done this by evaluating the evidence and assessing the demeanour of the witnesses.Moonlite Cleaning Services ltd v Jolanta Drabik[1]
6.3 At the outset, I must express my dissatisfaction with the lack of contemporaneous documentation opened to me by the respondent. I accept that the burden of proof in the case rests with the complainant, however, it is simply not helpful that two purported records from the complainants file were submitted in a different fashion by the respondent.
On September, 24, 2015, the respondent submitted an extract from the complainants file in defence of the claims. When requested by me at the conclusion of the hearing to furnish all records of meetings with the complainant during 2013, an expanded version of the September 2015 document was submitted on March 29, 2016. This document, has in my opinion served to deviate from the” first in time reporting” of the key period of 13 March 2013-22 March 2013 and the document raised consistency and credibility issues which I will return to. Suffice to say, I find the variation in both documents to be stark and lacking in transparency. It is of note that both documents are unsigned and undated.
6.4
(1) The complainant was employed in a permanent part time capacity at the home. The respondent was on notice of her pregnancy from January 24, 2013.
(2) There were inconsistencies in the management of the complainant with regard to “Force Majeure “leave of 2 days in January 2013 and the subsequent management of her pregnancy at work.
(3) I accept that the Home was “up in the air” following the negative commentary which emanated from HIQA on cleaning deficits. The HIQA report was not submitted in evidence, but I accept that it provided the antecedent back drop to the events in this case.
(4) I accept that there was a resentment within the cleaning team in relation to the fair allocation of work, however there was a concurrent lack of a management road map to manage this unease.
(5) I find that the respondent initiated the request for a Medical assessment of the complainant in the letter written by AMR on March 21. I accept that the complainant was given a copy of a pregnancy risk assessment compiled by both AMR and MOS on the recorded date of 21 March 2013 as her GP signed Part C on 21 March and supplemented it with a certificate of fitness for the complainant. I am satisfied that these documents were furnished to the respondent citing in medical terms “No modification necessary to work”
It is of particular note that the pregnancy risk assessment was not conducted in tandem with the complainant, nor were any comments on proposed actions to eliminate or minimise risks identified.
(6) There is a divergence in the evidence on the stated purpose of the 21 March, “To Whom It Concerns” letter. The complainant contended that it was intended for the GP while the respondent contended that it was intended for DSP for the sole purpose of securing Illness Benefit/ Maternity Benefit. On balance, I find that the complainant understood that she was to attend a medical review in good faith and was open minded in how she would be assessed. In contrast, I find that the respondent was hopeful that the complainant would be signed off work through illness and they simply did not have a plan B or contingency when this did not follow. I find that there was a significant shortfall in skill in the compilation of the risk assessment which impeded optimal management in the case. I also find that the company did not follow their own policies in the management of a pregnant worker, or termination of employment procedures.
(7) I accept that the Director of Nursing had some genuine concerns for the safety of the complainant, her evidence in that regard was cogent and honest, however, I find that her concerns were eclipsed by the actions of MOS, the owner of the home, who, failed to accommodate the complainant based on her own compiled risk assessment, neither did she seek to support her in her application for the “bridging benefit” of Health and Safety Leave.
(8) I have given careful consideration to both party’s recollection of the events in the case from March 13-22 and I must prefer the complainant’s version as the documentary evidence fits in the sequence of her version, i.e. the pregnancy risk assessment, the Letter to the Dr and the certificate of fitness. This was followed by a re-affirmation of fitness by the same Doctor on 25th April which seemed to enter a vortex in the respondent business. I accept the evidence of the respondent that she had replaced the complainant at the business by March 22nd 2013, but I have difficulty accepting her interpretation that the complainant walked out of her job as the termination of employment procedures cited in the contract of employment were not relied on by the respondent. In addition, when the complainant sought access to the staff handbook in June 2013, the respondent failed to respond to this letter. This does not fit with a “walk out “as if that was the case, surely, the respondent could have written to the complainant reminding her of this occurrence? This did not happen.
(9) I found the evidence of MM helpful in providing collateral to a defined unease amongst the cleaning team and while the witness was entitled to express her views on how she saw matters. However, I found her evidence to be largely subjective and lacking in cogency overall. I was struck by her admission that she had not reported her concerns about the complainant to her manager; this appeared in conflict with the Director of Nursing’s version of events.
(10) In conclusion, I find that the complainant was effectively” airbrushed” from the cleaning team, once deficits were reported by HIQA. I accept that there were low grade discussions of possible alternative work patterns /work placements within the home, which did not result in an action plan. The respondent company had an acknowledged low tolerance of the complainant’s pregnancy and lacked any creative management strategies for how the complainant could work during her pregnancy.
This was overtaken by the incomplete and improperly compiled risk assessment which was not acted on by the respondent. The complainant’s own Medical Officer pronouncements on the complainant’s fitness for work were disregarded on two occasions by the respondent. The respondent did not action a referral to an Independent Physician to guide them on an action plan. The complainant’s permanent position was not retained for her during her pregnancy or after her confinement. I accept that the complainant could have activated the grievance procedure, contained in her contract and I did not receive an adequate reason why this was not tested within the critical time frame of the claim. I accept her evidence that she was very vulnerable during that period, but both parties have a bi lateral responsibility to action policies in dispute resolution.
(11)In addition, the respondent submitted a document which was purported to be the centres, Pregnant , Post Natal and Breast Feeding Employees policy from page 54 of the staff handbook . This was received on March 29 2016, after the hearing.
I believe it useful to outline a summary of the contents of this document:
(1) Safety Health and Welfare at Work regulations 2007 detail the requirements in relation to pregnant employees.
(2) The employer must assess any risks to the safety and health of employee, resulting from any activity of the workplace likely to involve a risk of exposure to any agent, process or working condition
(3) It is for the employer to determine the nature and degree of the employee’s exposure and take preventative and protective measures to ensure the safety and health of employees and to avoid any possible effect on pregnancy.
(4) A provision to temporarily adjust the working conditions of the employee or failing that, the employer should assist the employee in receiving health and safety benefit .
Based on all of the above, I find that it was reasonable for the complainant to consider herself dismissed by the respondent when she was denied access to the cleaning roster following March 21st 2013 and her subsequent submissions for alternative work at the home on March 22nd. I find that she was purposefully excluded from her employment when the respondent informed her that she was not permitted to return to work. These events unfolded against a back drop of two certificates of Medical Fitness to work from the complainants long standing GP, taken in conjunction with the notification of her pregnancy to the respondent on January 24th 2013.I find that all these events were in contravention of the respondents own policy on pregnancy .
7 Burden of Proof in Cases of Alleged Discrimination:
7.1 Section 85A of the Act sets out the burden of proof which applies to claims of discrimination. It requires the complainant to establish, in the first instance, facts upon which she can rely on in asserting that she was discriminated against. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised.
7.2 In Melbury Developments Ltd v Valpeters [2] the Labour Court held that:
“Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn.”
Section 6(2)(A) of the Act [3]provides that “, discrimination on gender grounds shall be taken to occur where, on a ground related to her pregnancy or maternity leave, a woman employee is treated, contrary to any statutory requirement, less favourably than another employee is, has been, or would be treated”
7.3 In Trailer Holdings and Deborah Healy[4] The Labour Court stated with authority that:
In a line of authorities starting with the decision in C-177/88,Dekker v Stichting Vormingcentrum voor Junge Volwassenen[1990] ECR 1-3841 [5]the Court of Justice of the European Union (formally the ECJ) has made it clear that since pregnancy is a uniquely female condition any adverse treatment of a woman on grounds of pregnancy is direct discrimination on ground of her sex. Thus, the law of the European Union recognises the reality that to treat a woman less favourably because she is pregnant is to discriminate against her because she is a woman. That can never be justified. Issues such as disruption caused to an employer’s business or costs associated with accommodating a pregnant woman in employment are, as a matter of Union law, wholly irrelevant.
Since the decision in Dekker the protection afforded to pregnant women in employment has been strengthened considerably in the case law of the CJEU and in the legislative provisions of the European Union. Equality on grounds of gender is now expressly guaranteed by Article 23 of the Charter of Fundamental Rights of the European Union. Article 33.2 ofthat Charter also incorporates the prohibition of dismissal on grounds of pregnancy established in jurisprudence of the CJEU. It provides: -
- To reconcile family and professional life, everyone shall have the right to protection from dismissal for a reason connected with maternity and the right to paid maternity leave and to parental leave following the birth or adoption of a child.
7.4 Directive 92/85/EEC (The Pregnancy Directive)[6] provides a comprehensive legal framework in which special protection is afforded to the safety, health and welfare of pregnant women in employment. Article 10 refers:
“1. Member states shall take the necessary measures to prohibit the dismissal of workers within the meaning of Art 2, during the period from the beginning of their pregnancy to the end of maternity leave referred to in Art 8(1) save in exceptional cases not connected with their condition….
2 If a worker, within the meaning of Art 2 is dismissed during the period referred to in point 1, the employer must have cited duly substantiated grounds for her dismissal in writing.
This was given authority in Danosa V LKB Lizings SIA[7]” It is precisely in view of the harmful effects which risk of dismissal may have on the physical and mental state of women who are pregnant , have recently given birth or are breastfeeding , including the particularly serious risk that pregnant women may be prompted voluntarily to terminate their pregnancy , that , pursuant to Art 10,the EU Legislature provided for special treatment for women by prohibiting dismissal during the period from the beginning of the pregnancy to the end of the maternity leave “
7.4 In the instant case, I have found that it was reasonable based on the facts adduced, that the complainant considered herself dismissed from her employment following a series of exclusionary events which followed the HIQA Inspection in early March 2013. In this sense the case is distinguished from Moonlite Services, where the complainant was afforded Health and Safety Leave. The complainant in this case was denied access to a roster in her permanent job, had a respondent compiled pregnancy risk assessment set aside, two medical opinions validating her as being well enough to work during her pregnancy ignored, her submissions to be accommodated at the respondent company rejected all in the course of her fifth month of pregnancy.
She subsequently found herself in a DSP vacuum, where she could not secure either Health and Safety Leave or Maternity Benefit. I find it incredible that any company in this country would seek to disregard the exigencies of statute, the stronghold of jurisprudence in the sphere of pregnancy and breach their own policies in this stark manner, but I must accept that this is what occurred in this case.
Again, in Trailer and Deborah Healy, The Labour Court outlined that:
“In every case in which pregnancy related dismissal is in issue the factual combination of the dismissal and the woman’s pregnancy must in and of itself place the onus of proving the absence of discrimination firmly on the respondent “
In the instant case, I find the facts determine that the complainant has raised a prima facie case of discrimination on gender grounds encompassing a series of events from March 13, 2013 which culminated in her dismissal, while in the employment of the respondent and the respondent is wholly unable to rebut that presumption.
8. Allegation of Harassment.
8.1 Harassment is defined in S14 A (7) of the Acts and refers to:
Any form of unwanted conduct related to any discriminatory grounds, being conduct which in either case has the purpose/effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment.
Section 14A (1) states that harassment constitutes discrimination by the victim’s employer in relation to the victim’s conditions of employment.
8.2 The complainant was employed for 14 months before she imparted the information of her pregnancy to the respondent. I was struck by her acknowledged pride that she had managed to remain in the workforce until 38.5 weeks pregnant in a previous employment and this tied in with the visible pride the complainant had in her work. The contract of employment provided for a probationary period of 6 months which seems to have been unremarkable and it was common case that there were no known issues with the complainants work until the HIQA inspection.
8.3 I am reminded of the evidence of MM in relation to her recollection of the complainants “sore back”, this appears, to me, to have served as the catalyst for the approach taken by the Director of Nursing to manage the cleaning team. The complainant was a willing participant in the meetings with the respondent up until she was denied access to her roster. She was then beset by her employer and placed under pressure to exit the workforce through sick leave, when no other permutation or combination of her work could be identified and agreed on.
When she was determined not to have satisfied the medical criteria for sick leave, the pressure on her to step out of the workplace intensified. She was denied work and edged into a place where the DSP did not provide the “bridging benefits “to enable her to secure maternity benefit. I find that the respondent made a significant contribution to this vista of “no man’s land “.
I find that the respondent, in this case engineered a road map, through the veneer of an improperly completed pregnancy risk assessment to cause the complainant to become trapped and separated from her work, which, in turn caused her considerable stress. I accept the evidence of the complainant that she was asked to change her GP by the respondent. This is an invasion in privacy. It was open to the respondent to request the complainant attend a Dr. appointed by the company.
I find that the respondent caused significant aggravation for the complainant, during the 5th month of her pregnancy, which was avoidable, had reasonable management skills been practiced to dilute the tension on the cleaning team. I find that the respondent adopted an “out of sight, out of mind” strategy and by applying that pressure on the complainant, by exclusionary and rebuking means, this constituted harassment on grounds of gender under the Acts.
8.4 The respondent is entitled to make a defence in S.14A (2) of the Act. The respondent was steadfast that the complainant was not harassed. This premise is undermined by two key factors
1 The respondent represented two conflicting records of the alleged same set of events from the Director of Nursing records. This raised significant credibility issues. The complainant’s hours were given to MM and three months later she was formally replaced, all within the complainants protected period. The respondent issued a letter dated 11 April 2013, stating that the complainant ceased employment on March 13th, 2013. This was a misrepresentation.
2 The respondent failed to act reasonably in relation to the risk assessment findings and the Doctor’s pronouncement of the complainant’s fitness to work and left no records of discussions surrounding this. Odion v Techniform [8] applies.
Taken in tandem, these actions do not satisfy S 14A (2) of the Acts and while I find that the complainant could have actioned the grievance procedure to advance her dissatisfaction with how she was treated, this was effectively denied to her when that she had been replaced ,the respondent has been unable to rebut the complainants prima facie case of harassment on gender grounds.
8.4 There are overlaps in the instant case with O Brien v Persian Properties ltd [9] where the Equality Officer, in that case remarked on the pressure applied on the complainant which was in marked contrast to her earlier pregnancies. This is reaffirmed here.
9 Decision:
9.1 I have concluded my investigation of the complaint, and record my decision in accordance with section 79(6) of the Acts.
(1) The respondent discriminated against the complainant on grounds of gender in relation to her pregnancy in breach of section 6(2) (a) and section 8 of the Acts.
(2) the respondent harassed the complainant on the grounds of gender contrary to section 14(A) of the Acts.
9.2 I am left with an indelible impression of the experiences recounted by both parties in the case . I found that what happened in the course of this employment, broke virtually all the rules surrounding the protection of a pregnant employee. I found the complainant to be deeply affected by her experience. I found the lack of insight on behalf of the respondent deeply disconcerting. In addition, I was disturbed by the frequent references made by the respondent during the hearing to inability to pay any award I might make, when I was merely trying to complete my investigation and did not pose any question in that realm. I am guided by the direction from the Labour Court in this regard :
In Watters Garden World Limited and Lurie Panuta [10] affirmed in Elaine Byrnes Health and Beauty Clinic v Mary Gilman Bennett[11]
- · “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 “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.”
9.3 Therefore, I must confine my deliberations on redress to this precedent. I am not permitted to address the loss the complainant sustained in DSP payments in my award.
In accordance with S 82 (1) of the Act, I order the respondent pay the complainant:
(a) €26,320 in compensation for the discrimination and harassment suffered.
(b) Pursuant to section 82(5)(b) of the Acts, pay the complainant interest at the Courts Act rate in respect of this amount in respect of the period beginning on 1, August ,2013(date of complaint) and ending on the date of payment. This award is redress for the infringement of Ms White’s statutory rights and therefore not subject to tax.
(c) I also order that the respondent undertakes a supervisory management course encompassing legislation on Maternity Protection, conflict resolution and the importance of record keeping in the management of human resources within an 18-month period.
Patsy Doyle
Adjudication Officer /Equality Officer
Footnotes
[1] Moonlite Cleaning Services ltd v Jolanta Drabik EDA 1416 , Labour Court 2014
[2] EDA 0917
[3] Employment Equality Acts 1998 -2011
[4] Trailer care Holdings v Deborah Healy EA 128 ( Labour Court )
[5] C-177/88,Dekker v Stichting Vormingcentrum voor Junge Volwassenen[1990] ECR 1-3841
[6] EU Directive 92/85/EEC
[7] C-232-09 Danosa v LKB Lizings S/A[2011] CMLR
[8] Odion v Techniform ltd DEC -E2007-018
[9] Julie O Brien v Persian Properties ltd [2012]23 ELR 211
[10] Watters Garden World ltd and Lurie Panuta EDA 098
[11] Elaine Byrnes Health and Beauty Clinic and Mary Gilman Bennett EDA 161