ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00000383

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

Date of Adjudication Hearing: 31/03/2016

Workplace Relations Commission Adjudication Officer: Caroline McEnery

Procedure:

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

 Complainant’s Submission and Presentation:

The Complainant claims to have been discriminated against by the Respondent by reason of Section 6(2)(a) gender and Section 6(2)(c) family status of the Employment Equality Acts, 1998 to 2011.

The Complainant also took a complaint under the Organisation of Working Time Act, 1997 however this complaint was withdrawn on the day. This was ref SI 36/2012. This SI only applies to mobile workers.

The Complainant states that the Respondent treated her unlawfully by discriminating against her in conditions of employment and other areas.

The Complainant stated that in her complaint form that she usually worked from 9am – 6pm Thursday, Friday and Saturday.

The Complainant was pregnant and her baby was due in December 2015.

The Complainant stated she had to take time off due to pregnancy problems during her pregnancy.

When she told the Respondent that she was pregnant the Complainant claims that the Respondent said that ‘I know that your arse is fatter’ and ‘you are very young’.

The Complainant commenced on sick leave on the 29^th of April 2015.

The Complainant states that she was told not to return until the vomiting completely stopped as it was disruptive as she was going in and out. The Complainant was off work for a number of weeks because of this.

In or about July 2015 the Complainant informed the Respondent that she could return to work after a period of illness.

The Complainant stated that the Respondent said to her that she was not reliable and that she would have to go before Christmas as he baby was due then.

The Complainant stated that the Respondent said that she would have to replace her and that it was too much hassle having her back before her baby was born.

The Complainant states that she was receiving €245 per week and that she did not receive payslips.

The Complainant believes that the Respondents records are not accurate.

The Complainant states that she did not receive compensation for public holidays.

The Complainant believed that she would lose out on her entitlement to maternity benefit.

The Complainant stated that if work became quiet that she would be sent home at approximately 3pm or 4pm and would not get paid for these hours.

The Complainant stated that she was asked to sign documents because of a NERA inspection and that she was asked to sign a contract of employment but did not get a copy of it.

The document for NERA outlined that she got proper lunch breaks which she claims she did not.

Respondent’s Submission and Presentation:

The Complainant has been employed as a Barber and Hairdresser since 2nd December 2013.

The Respondent operates as a Hairdressing and Barber Salon.

The Respondent refutes the allegations claimed by the Complainant.

There has been no infringement of the principle of equal treatment in relation to the Complainant’s allegations.

The Complainant was not treated poorly, differently or less favourably on the basis of her gender or family status.

Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

Issues for Decision:

The Complainant claims to have been discriminated against by the Respondent by reason of Section 6(2)(a) gender and Section 6(2)(c) family status of the Employment Equality Acts, 1998 to 2011.

Legislation involved and requirements of legislation:

Discrimination

Section 6(1) of the Acts provides:

“Discrimination shall be taken to occur where, on any of the grounds in subsection (2) (in this Act referred to as “the discriminatory grounds”, one person is treated less favourably than another is, has been or would be treated.

Section 6 (2) (a) – (i) of the Acts outlines that the Complainant must be treated less favourably on the grounds of gender, marital status, family status, sexual orientation, civil status, religion, disability, race or a member of the Traveller community for the case to succeed.

Section 8 (1) of the Act provides:

“In relation to-

(a)   Access to employment

(b)   Conditions of employment

(c)    Training or experience for or in relation to employment

(d)   Promotion or re-grading, or

(e)    Classification of posts,

an employer shall not discriminate against an employee or prospective employee….”

Decision:

In reaching my decision I have taken into account all of the submissions, oral and written, made to me in the course of the investigation as well as the evidence presented at the hearing.

Section 85A (1) of the Employment Equality Acts, 1998 – 2007 states: “Where in any proceedings facts are established by or on behalf of a Complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the Respondent to prove the contrary.” This means that the Complainant must establish primary facts upon which the claim of discrimination is grounded and then the burden of proof passes to the Respondent.”

In deciding on this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the Complainant. I confirm that the Complainant has presented evidence which in the absence of any credible contradictory evidence by the Respondent has led the Adjudication Officer concluding that discrimination has probably occurred. The onus now shifts to the Respondent to rebut the inference of discrimination raised. The Complainant alleges an ongoing series of discriminatory acts by the Respondent when she told the Respondent that she was pregnant.

Prima Facia

The Complainant has alleged that the Respondent treated her unlawfully by discriminating against her in relation to her conditions of employment and other (not specified) under Section 8 of the Employment Equality Acts 1998-2011.

It is stated by the Respondent that the Complainant has not put forward a prima facia case to show that she was discriminated against on the basis of her Family Status or Gender

It is stated by the Respondent that if the Complainant does not discharge the initial probative burden required of her, her case cannot succeed.

In this case the Complainant has established a prima facie case.

Inappropriate Comments:

The first alleged discrimination act was inappropriate comments when she told the Respondent that she was pregnant in April 2015.

The Respondent denies the complaints and states that she has had three or four staff on maternity leave previously.

The Respondent also stated she currently has five staff all of which are female.

The Respondent stated that she said congratulations to the Complainant when she told her she was pregnant and denies saying anything else to her.

The Adjudication Officer is not in a position to confirm whether the respondent made the comments stated by the complainant or not. However, the adjudicator prefers the evidence of the Complainant in relation to this allegation based on the evidence presented.

Hours of Work:

The Complainant states she confirmed she was ready to return to work in July 2015 however claims the Respondent said she could only give her four hours rather than her full hours.

The Complainant said it wasn’t worth her while coming in for that many hours via text to the Respondent.

Text was their main form of communication.

In relation to the text message sent to the Respondent of the 29^th of July 2015 the Respondent states she did not reply fully to address all the points she raised in message as she just glanced at it and didn’t consider the points raised by the Complainant as serious. In relation to the allegations of inappropriate comments being made to the Complainant when she confirmed her pregnancy - the evidence is conflicting and isn’t substantiated one way or another.

The Complainant did not get a reply to the text in relation to the security of hours on her return from pregnancy related illness and was only offered 4 hours work when there was work available which is unacceptable as the protection of the Complainants’ rights during pregnancy must be maintained.

The Complainant alleges that she had difficulty getting the Respondent to sign her maternity leave form and is unsure what hours, payment etc. will be there for her on her return after maternity leave.

On the 25^th of July 2015 the Complainant called into the Respondent to give her medical certs.

The Complainant alleges that the Respondent said that it wasn’t worth her while having her back as she would be gone again before Christmas to have the baby.

The Respondent stated that she wasn’t fit to come back until the 25^th of July 2015 when the Complainant called in and had a cup of tea and the Respondent asked her to cover her shift but the Complainant said she could not as she had a wedding that day.

The Respondent claims she was being helpful offering the Complainant four hours of work as the Complainant was also getting illness benefit.

In relation to the allegation that the Complainant’s hours were reduced to 4 hours after the proposed return following pregnancy related sickness – the text message of 29th of July proves to substantiate the Complainant’s version of events.

The Complainant and the Respondents main communication method was text. To say the Complainant was unreliable and penalise her by offering her reduced hours while pregnant is unacceptable.

The Respondent, as an employer, should have addressed the text message of the 29th of July 2015 to remedy the matter and give the Complainant her normal hours.

The Complainant did receive illness benefits while she was out sick up to her Maternity Leave.

The Respondent did not medically assess the Complainants fitness to return to work full or reduced hours and decided to give her reduced hours. The Complainant was therefore at a loss financially.

The Adjudication Officer has therefore decided that the complainant was discriminated as she was not offered the same hours of work on her return to work following a period of absence due to pregnancy related illness.

Pay:

The Respondent claims that she was on €9 per hour as per her contract.

The payslip states that the Complainant was paid €9.22 and €142.16 in total per week net. However the Complainant confirmed she also received cash with this payment.

The Respondent says that she never pays cash.

The Respondent said that she offered the Complainant to do afternoons after she was fit to return after her pregnancy related sickness and alleged the Complainant asked for cash to do this.

There is a significant conflict between both parties evidence. The start date and the fact the Complainant states she is paid €100 cash in addition to her €142.16 cheque each week. As well as this the hours as well as the alleged events occurring seem to conflict. The Complainant claims to work 24 hours versus the Respondent saying its 15.5 hours as in the Complainant’s contract however in the witness statement for social welfare the Respondent stated 19.5 hours. The Complainant’s contract states she was on €9.00 per hour. The Respondent said she has never given her a pay increase however her payslip states she is on €9.22 and the Complainant claims to be paid €245 every week.

This Adjudication Officer is of the opinion that the Complainant was in receipt of €10.00 as she stated for 24 hours and that cash payments were being made as the Respondent alleges.

The totality of this payment should be taxed correctly as all employers are required to be compliant with revenue obligations.

A weekly payslip and roster to reflect breaks, holidays and public holidays in line with statutory legislation is advised to ensure the Complainant is not victimised or discriminated on her return to work after her Maternity Leave ends.

Advertised Role:

On the 18th of July 2015 the Complainant stated she saw what she thought was her job advertised so she contacted the Respondent by text but got no response.

The Respondent also said it was not the Complainant’s role advertised.

It is the opinion of the Adjudication Officer that the role advertised was the Complainants role although the complainant was still in employment with the employer.

The Adjudication Officer has therefore decided that the complainant was discriminated against based on gender as she was not offered the same hours of work on her return to work following a period of absence due to pregnancy related illness. In addition to this it is evident that the hours were available as the role advertised shortly after this occurrence appears to have matched the details of the complainant’s role.

Return from Maternity:

The Complainant claims she had 24 hours work before she became pregnant which were 9am – 5pm on Thursday, Friday and Saturday.

The Respondent claims the Complainant worked fifteen and half hours which was based on: 12pm – 7pm on Thursday, 3pm – 6.30pm on Friday and hours on a Saturday which vary.

The Respondent confirmed there will be 15.5 hours at €9.22 per hour available to the Complainant on her return from maternity leave.

This is not acceptable as this does not match the opinion the Adjudication Officer that the Complainant was in receipt of €10.00 as she stated for 24 hours and she should receive these hours on her return to work as she has them prior to her pregnancy.

Conclusion

Section 85 [A] of the Employment Equality Acts 1998 and 2004 sets out the burden of proof which applies in a claim of discrimination.    

In accordance with the above mentioned legislation I conclude and issue the following decision that the Complainant has established a prima facie case.

I have considered the following to confirm if this claim meets the requirements of this Acts:

• The Complainant must establish that she is covered by the relevant discriminatory ground. I can confirm the Complainant has established that she is covered by the relevant discriminatory ground which is gender based on her pregnancy.
• The Complainant must establish that the specific treatment alleged has actually occurred. I can confirm that the Complainant has established that the specific treatment alleged has actually occurred.

I find that the Complainant was treated in a discriminatory manner relating to her gender and family status contrary to Section 6(2)(a) and 6(2)(C) of the Employment Equality Act, 1998 to 2011.

I am satisfied that the appropriate form of redress is an award of compensation. In measuring the quantum of compensation which is fair and equitable I order the Respondent to pay the Complainant a total of €6,000.00 in compensation.

This figure represents compensation for infringement of his rights under the Acts and is not taxable.

Dated:   11/05/2016