EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E2016-145
PARTIES
A Worker
V’s
An Employer
(Represented by A Solicitor)
File reference: et-155950-ee-15
Date: 7th November 2016
1. The Claim
1.1 This claim concerns a claim by the Complainant that she was discriminated against by her Employer (hereinafter the “Respondent”) which resulted in her discrimination and subsequent pregnancy related dismissal contrary to Section 14A (1) of Employment Equality Act 1998 and 2004 (hereinafter the “Acts”) on the grounds of gender, family status and civil status.
1.2 On 27 September 2016, in accordance with her powers under Section 75 of the Acts, the Director General of the Workplace Relations Commission delegated the case to me, Caroline McEnery, an Adjudication Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. Submissions were received from both sides.
1.3 In accordance with Section 79 (1) of the Acts and as part of my investigation both parties attended a hearing on the 14th October 2016.
1.4 The Complainant and the Respondent attended the hearing.
1.5 This decision is issued by me following the establishment of the Workplace Relations Commission, as an Adjudication Officer who was an Equality Officer prior to the 1st October 2015, in accordance with Section 84 (3) of the Workplace Relations Act 2015.
2. Complainant’s Submission and Presentation
2.1 The Complainant is alleging discrimination on the grounds of gender by The Respondent.
2.2 The Complainant was employed by the Respondent for nearly two years from 20 March 2013. The Complainant states she worked for 8 hours per day, 5 days per week.
2.3 The Complainant states that she did not receive a statement in writing outlining her terms of employment. In her first year of my employment the Complainant alleges to have worked without any employment contract.
2.4 The Complainant states she did not receive regular payslips.
2.5 In February 2014 The Complainant informed the Respondent about her pregnancy. The Complainant alleges that the following issues arose once the Respondent had been informed of her pregnancy.
2.6 The Respondent imposed a reduction of working hours. On 1 April 2014 the Complainant was issued with a new temporary contract. She alleges that the new contract was issued without any terms and conditions and the duration outlined was 12 months to be reviewed after 4 months. The Complainant refused to sign the new contract as she had worked full time for a full year without any contract prior to the new contract being issued.
2.7 The Complainant alleges that her working days were reduced down from 5 days per week to 2 days per week. She alleges that terms and conditions of employment have only changed for her as the other 3 employees (Employee 1, Employee 2, and Employee 3) terms and conditions did not change. The Complainant alleges that employee 1 was employed illegally without any contract or PPS number.
2.8 Under the conditions of her new contract the Complainant worked for 6 months up until her Maternity Leave which was from 1 March 2013 to 9 September 2013. She claims that their working relations became very intense as she felt constant pressure from the Respondent.
2.9 The Complainant stated that in June and July of 2014 there was conflict between them whereby she claimed the Respondent expressed discontent with her work. According to the Complainant, the Respondent claimed that she worked slowly and was carrying out few orders. The Complainant claims that she worked with the same intensity, efficiently and with similar responsibility as before. The Complainant outlined how her working duty was to sew and repair clothes but how she often had to perform other duties such as accepting and making out new orders, writing receipts, handing over orders and to sell goods.
2.10 The Complainant developed diabetes during her pregnancy which she states was connected to the stress caused by work. The Complainant stated that if her 2 working days coincided with appointments she had with her doctor, appointments for an ultrasound or days delivery of analysis from the maternity hospital she would ask if she could change her working days. She claims that the Respondent expressed unwillingness to see her at work and she stated “if you are sick, stay at home”.
2.11 While the Complainant was working on a part time basis she was claiming Jobseekers Benefit from the Department of Social Protection. She claimed that each Thursday she had to provide documentation with specified dates of work which had to be confirmed by the Respondent. She claims that the Respondent detained these documents each week. She claims that on one occasion in June 2014 the Respondent held her documents for the month and that she would bring them to the DSP herself but never did. The Complainant alleges that the Respondent refused to bring her documents, payslips and forms to the Department of Social Protection and so claims that the Respondent deprived her of her right to social protection and guarantees. She claims that further discrimination continued after she returned from her Maternity Leave in March 2015.
2.12 Once the Complainant’s Maternity Leave was up on 10 March 2015 she claims to have sent the Respondent a message saying “When I can coming back to work?” The Respondent responded by saying she needed time to think and on 11 March 2014 she informed The Complainant by text message that her working hours had been changed from 2 days per week, 8 hours a day to 5 days a week, 3 days per week at 3.5 hours a day. The Complainant states that these changes occurred without being given any explanation or written notice about her contract. The Complainant responded by text message where she outlined that the new working hours were not acceptable and would not make any sense. The Respondent replied to this message saying that she had 16 hours work a week for her 5 days per week from 2pm to 5:30pm, but no more due to business being quiet. The Complainant claimed that despite the Respondent saying business was low she had employed two new people who she suspected were also more than likely working illegally. The Complaint explained how the new working hours did not suit her as she lives 2 hours away which costs her €10 on the bus each day. Her income amounts to €25 a day and so these conditions of employment created a huge expense for her on a low income. The Complainant alleges to have been very upset at this time and said it affected her health and the health of her child.
2.13 On the 20 March 2015 the Complainant made an official complaint to Limericks Citizens Information. The Complainant wished to sort out the relevant documentation to leave her place of employment. On the 25 March 2015 the Respondent sent the Complainant a letter with her expected return to work on a two day a week basis where she would be working from 9:30am to 5:30pm. The Respondent agreed to meet the Complainant when she returned from her two week holiday but the Complainant did not wish to wait that long and did not want to return to work anymore.
2.14 The Complainant phoned the Respondent and informed her how she wished to finish working for her and she required her P45. The Respondent refused to sign the documents for dismissal and ignored the Complainants request for her P45. Without these documents the Complainant was left without work and was unable to apply for Jobseekers Benefit or Family Income Supplement. For four months the Complainant continued to ask the Respondent for her P45 but the Respondent refused to issue the document nor would she communicate with the Complainant. The Complainant alleges that the Respondent therefore deprived her of her right to social protection while she was looking for employment.
2.15 In June 2015 the Complainant received information that the Respondent Company had officially closed and got the accountants email address to write a letter.
2.16 On the 26 June 2015 the Complainant received a letter in the post from the Respondent containing her P45 and a payslip for 1 July 2015. The letter did not contain any holiday payment nor did it contain any compensation for work that she lost out on. For the duration of the Complainants employment she was paid in cash, she never received payment for holidays or public holidays.
3. Respondent’s Submission and Presentation
3.1 The Respondent is the sole proprietor of a former partnership which was a business which specialised in clothing alterations and mending. The partnership was established in October 2012 but broke up in December 2014 due to the other partner becoming unwell.
3.2 The Complainant was employed by the Respondent on the 1 April 2013. She was offered several employment contracts over the time that she was employed, all of which she refused to sign. The Complainants hours were originally 40 per week which was reduced to 16 per week with her wages being reduced from €337.75 to €138.90 per week.
3.3 On 31 March 2014 the Respondent Company was trading badly and the Complainant agreed with the Respondent to reduce her working hours for the sustainability of the business. The Complainants working hours were thus reduced from 5 days a week to 2 days per week by agreement. The Complainant immediately claimed Social Welfare to make up the shortfall and the Respondent wrote to the Department of Social Protection in this regard.
3.4 The Complainant made the Department of Social Protection aware that she was pregnant and that she was seeking Maternity Benefit during the course of August 2014 and that she was due to deliver her child on 23September 2014.
3.5 The Complainant then went on Maternity Leave and was due to return to work on 9 March 2015.
3.6 The Complainant texted the Respondent on 9 March 2015 asking when she could return to work. A series of text messages ensued and ultimately the Complainant was sent a letter on 25 March 2015 and on the 13 April 2015 outlining her offered working hours. The Complainant did not agree with these working hours and made a complaint by letter dated 20 March 2015.
3.7 The Respondent submits that they did not in any way discriminate against the Complainant due to her gender or pregnancy. The working hours were changed due to the nature of the business and the fact that there was still a major downturn.
3.8 The Respondent has never changed her attitude towards the Complainant because she was pregnant or at any time for that matter.
3.9 The Respondent is a working mother and is very understanding of the pressures of family life while at the same time valuing her ability and that of her colleagues to work and their right to do so.
3.10 The Respondent asks the tribunal to carefully consider the matter of whether the Complainant has established a prima facie case of discrimination in this regard.
3.11 In relation to the incident of discrimination dated 1 April 2014 in the complaint form the Respondent submits that that part of the claim is statute barred and should thus not be considered. It requires the Complainant to establish, in the first instance, a prima facie case of discrimination. It is respectfully submitted that the Respondent cannot establish a prima facie case of discrimination has not discriminated against the Complainant
4. Findings and Conclusions
4.1 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.
4.2 Section 85 [A] of the Employment Equality Acts 1998 and 2004 sets out the burden of proof which applies in a claim of discrimination.
85A.—(1) 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.
4.3 In deciding on this complaint, I must first consider whether the existence of a prima facie case has been established by the complainant. 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.
4.4 The Complainant has presented evidence through her written and oral submissions which constitute a prima facie case and it is the opinion of this Adjudicator that the Complainant has established the burden of proof in regards to her complaint.
4.5 The Complainant commenced work in April 2013 but was not provided with a contract of employment until April 2014 approximately one year after her start date with the Company. The Complainant confirmed that she stated she was pregnant in February 2014 and in April 2014 she received a temporary contract despite the fact she had been in employment in advance of that date. No evidence was presented to the Equality Officer/Adjudicator by the Respondent to confirm why a contract of employment was not issued as per the legislation.
4.6 The Complainants hours of work were reduced in March 2014 from 40 hours per week to 16 hours per week and her new temporary contract was issued on these terms. It is noted that the Respondent had three other employees within employment, all three of whom received no reduction in hours. No evidence was presented to the Equality Officer/Adjudicator by the Respondent to confirm the reduction in hours was a mutually agreed decision nor was there any satisfactory explanation as to why the Complainant was the only employee effected by the reduction in hours.
4.7 The Respondent states that the Complainant informed the Company of her pregnancy in August 2014 and commenced Maternity Leave in September 2014. This is in conflict with evidence submitted by the Complainant stating she was required to be in attendance at ultrasound scans and medical visits in advance of August 2014 in the lead up to her pregnancy and that the Respondent was fully aware in advance of August 2014.
4.8 Following her Maternity Leave the Complainant asked to return to work and was notified via text message that her hours had subsequently been reduced further to 3.5 hours per week over a 5 day week. The payment in receipt of hours worked did not pay her to attend work and cover expenses. There was no evidence presented to the Equality Officer/Adjudicator by the Respondent to confirm why the hours had been alternated and reduced. The Complainant was not entitled to return to the same job on the same favourable conditions as she had previously had in advance of her Maternity Leave.
4.9 The Complainant was delayed in receiving her P45 and it was not received until four months after.
4.10 The Complainant was not in receipt of a final payment of annual leave as per her entitlements under the legislation.
4.11 Based on the submissions of the parties and the evidence before it the Equality Officer/Adjudicator finds that the Complaint is well founded
5. Decision
5.1. 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.
5.2 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, family status and civil status.
· 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.
5.3 I find that the Complainant was discriminated in a discriminatory manner in regards to her hours of work and the manner in which she was treated.
5.4 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 €8,781 in compensation. This figure represents compensation for infringement of her rights under the Acts and is not taxable.
____________________
Caroline McEnery
Equality Officer/ Adjudicator