DEC-E2016-152

EMPLOYMENT EQUALITY ACTS

DECISION NO. DEC-E2016-152

PARTIES

A Senior Commercial Accounts Manager

(Represented by Sarah O’Mahoney BL,

instructed by Hennessy Perrozzi Solicitors)

-v-

An Accounting Firm

(Represented by Stephen O’Sullivan BL,

instructed by Kent Carty Solicitors)

File Reference: et-149425-ee-14

Date of Issue: 14th November 2016

1. DISPUTE

1.1 This dispute concerns a complaint of discrimination on the grounds of gender and family status contrary to Sections 6(1), 6(2)(a), 6(2)(c) and 8 of the Employment Equality Acts (hereinafter also referred to as ‘the Acts’), in relation to the conditions of the Complainant’s employment around her maternity leave.

1.2 The Complainant’s Solicitors referred the aforesaid complaint under the Acts to the Director of the Equality Tribunal and it was received on 7th October 2014. On 5th November 2015, in accordance with his powers under Section 16 of the Workplace Relations Act 2015, the Director of the Workplace Relations Commission (hereinafter ‘WRC’) delegated the case to me, Aideen Collard, 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, on which date my investigation commenced. As required by Section 79(1) of the Acts and as part of my investigation, I proceeded to a hearing on 13th November 2015. Written submissions had been received from both Parties who were both legally represented with Counsel and Solicitors. All oral and written evidence presented has been taken into consideration in my decision. I indicated that I would be relying upon the key statutory provisions and relevant case law on the area. I have also exercised my discretion to anonymise this decision given the sensitivities involved.

1.3 This decision is issued by me following the establishment of the Workplace Relations Commission (hereinafter ‘WRC’) on 1st October 2015, as an Adjudication Officer who was an Equality Officer prior to 1st October 2015, in accordance with Section 83(3) of the Workplace Relations Act 2015.

2. PRELIMINARY ISSUES

2.1 An issue was raised regarding whether an extension of time was required for submission of this complaint given that the subject-matter first arose in or around January 2013 when the Complainant informed the Respondent’s Director, Mr AB of her pregnancy. Thereafter followed a series of alleged instances of discrimination on the grounds of gender and family status which were still ongoing at the time of submission of the complaint form on 7th October 2014, and indeed at the date of the hearing. In relation to the applicable time limits, Section 77(5)(a) of the Acts provides: “Subject to paragraph (b), a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of occurrence of the discrimination or victimisation to which the case relates or, as the case may be, the date of its most recent occurrence”, extendable to 12 months for reasonable cause under Section 77(5)(b). Section 77(6A) deals with the different forms of continuing discrimination or victimisation under the Acts and includes a provision that “discrimination or victimisation occurs- (i) if the act constituting it extends over a period, at the end of the period,”. Essentially, where the complaint of discrimination refers to a series of separate acts or omissions sufficiently connected so as to constitute a continuum as asserted in the instant case, there must be acts or omissions of discrimination that fall within the requisite time limit in order for acts or omissions outside the time limit to be taken into account. (County Cork VEC -v- Hurley EDA 1124) Having considered the alleged instances of discrimination in light of these provisions, I am satisfied that they are sufficiently connected so as to constitute a continuum of alleged discrimination and therefore fall within the requisite time limits. For the avoidance of any doubt, this decision pertains only to matters occurring up until the date of submission of the complaint form on 7th October 2014 and any matters occurring thereafter and in particular, the internal grievance procedure are referred to by way of background and context only.

2.2 The relevant boxes for discrimination on the grounds of gender and family status in relation to conditions of employment were ticked on the complaint form submitted by Solicitors on behalf of the Complainant. In the course of oral and written submissions, references were made on behalf of the Complainant to claims of harassment contrary to Section 14A of the Acts and victimisation (Section 74(2) of the Acts) but the corresponding boxes had not been ticked on the form. Applying the liberal approach traditionally adopted by the Equality Tribunal in relation to complaint forms which are non-statutory in nature, I have examined the body of the form in relation to the ‘specifics of the complaint and any other relevant information’. I am not satisfied that the matters outlined therein could constitute harassment or victimisation and consequently have to conclude that these claims are not properly before the WRC. I will therefore proceed to consider this complaint under Sections 6(1), 6(2)(a), 6(2)(c) and 8 of the Acts.

3. SUMMARY OF THE COMPLAINANT'S SUBMISSIONS & EVIDENCE

3.1 The Complainant outlined the background to this complaint and confirmed that she is employed by the Respondent as a Senior Commercial Accounts Manager having commenced employment on 9th November 2010. Her indefinite contract of employment is unusual in so far as it provides: “Your salary is based on performance with minimum income generated for and owned by the company of €80,000. Failure to reach this minimum income level will result in a proportionate reduction in your salary.” As the Complainant had never been able to meet this target, her salary was reduced from €42,000 to €33,000 following a review in early 2012. Another unusual feature of her contract but apparently commonplace within the insurance industry was the fact that she brought her ‘book of clients’ (a list of contacts which she had built up throughout her career) with her to the Respondent for the purposes of generating income on its behalf. If she was to leave her employment with the Respondent, she would be entitled to bring her ‘book of clients’ with her to the next employment. The Complainant contended that the targets set by the Respondent were unrealistic and in fact nobody, including a former employee could reach them. Notwithstanding the difficulties in reaching the targets set, the Complainant had a relatively good working relationship with Mr AB, one of the Directors of the Respondent whom she worked alongside in a small office along with one of the staff member, and also reported to directly.

3.2 In or around January 2013, the Complainant informed Mr AB that she was pregnant, giving six months’ notice before her maternity leave would commence. The contract did not include any provision for maternity pay other than a reference to her statutory entitlements under the Maternity Protection Acts. She contends that she was provided with no information by the Respondent in relation to her maternity pay entitlements despite continually requesting same as she needed to make financial arrangements for her leave. She had asked Mr AB on a monthly basis about her maternity entitlements and felt ‘fobbed off’ when he said that he did not understand maternity entitlements or leave as he had never dealt with a pregnant woman before. The lack of certainty in relation to her position caused undue stress during her pregnancy. No risk assessment was ever carried out in respect of the Complainant’s pregnancy.

3.3 During the latter months of her pregnancy, clients frequently asked the Complainant who would be covering her accounts while she was away on maternity leave. When the Complainant asked Mr AB about maternity cover he informed her that he had not thought about her going on leave as he was too busy himself. The fact that cover had not been organised caused her severe stress during the period leading up to her maternity leave. She was put under pressure to ‘clear her desk’ before departing on maternity leave which was simply not possible given the volume of work involved. The heavy workload placed on the Complainant due to this pressure prior to her departure caused her a huge amount of undue stress. She was certified as unfit for work from 18th April 2013 until 26th April 2013 which she contended was due to high blood pressure caused by work-related stress. As a hospital certificate dated 18th April 2013 (which notably did not specify the reason for her unfitness to work) had been furnished to Mr AB, she further contended that he had been on notice of her work-related stress from that date.

3.4 During a conversation on 24th June 2013, the Complainant was finally told by Mr AB that the Respondent would pay her expenses of €250 per month during her maternity leave as a goodwill gesture. Following this conversation, the Complainant enquired of Mr AB as to what date she was to finish up, wherein Mr AB responded: “What do you want to do go home and sit on your arse all day?”

3.5 The Complainant’s agreed date to commence maternity leave was 28th June 2013. However, she had to finish work on 27th June 2013 as when she attended a hospital appointment that day, she was told that her blood pressure was dangerously high and was advised to finish work immediately. When the Complainant phoned Mr AB to advise him of the situation he replied: “When you calm down ring me to go through your desk and work that’s now left for me to do.” On 30th June 2013, the Complainant sent Mr AB a detailed email opening with: “Just to keep you up-to-date on what I didn’t get finished on my desk.” and setting out the outstanding work on her desk along with any information he would require during her absence including her computer password, a copy of which was produced during the hearing.

3.6 Despite being on maternity leave for the week prior to the birth of her son on 8th July 2013, the Complainant was constantly contacted by Mr AB. On 1st July 2013, she received a call from Mr AB asking about a client. He informed the Complainant that she had made a “mess of the file” and she came off the phone call in tears. During the next few months of her maternity leave the Complainant was contacted by telephone by Mr AB and her replacement Mr EF every couple of weeks. She confirmed in evidence that she had never agreed to be contacted in such a manner during her maternity leave.

3.7 By letter dated 21st November 2013, the Complainant contacted Mr AB and informed him that she wished to take the additional maternity leave of 16 weeks, being her statutory entitlement. Her maternity leave was due to conclude on 29th December 2013 and therefore the additional maternity leave would have bought her return to work date up to 21st April 2014. Thereafter accrued annual leave resulted in a return to work date of 5th June 2014. When the Complainant spoke to Mr AB and informed him that she wished to take the additional leave she was told: “That is not what I wanted to hear.”

3.8 The Complainant continued to be contacted by Mr AB and Mr EF on a continual basis as well as by clients who told her that their calls were not being returned by the Respondent. On 10th March 2014, the Complainant was feeding her son when she was texted continuously by Mr AB until she responded to his query. On 15th May 2014, the Complainant received a call from Mr AB informing her that he was having problems with one of her clients and that she would have to go and meet them as he did not want to deal with them. Throughout the entire period of her maternity leave, the Complainant was regularly contacted for her advice on files and dealing with clients. On at least three other occasions during her leave, the Complainant was requested by the Respondent to meet with clients outside the office.

3.9 On 9th May 2014, the Complainant attended at the Respondent’s offices and requested parental leave. The Complainant was refused this request and therefore she requested to be allowed to return to work three days one week and four days the next week, in the short term, until she could organise suitable childcare. The Respondent simply refused her requests stating that the role is a full-time role only.

3.10 On 23rd May 2014, the Complainant attended a return to work meeting with Mr AB in advance of her scheduled return to work on 5th June 2014. Before she attended that meeting she was telephoned by Mr AB who told her not to bring her son to the meeting. Mr AB opened the meeting by informing her that the replacement cover for her during her maternity leave, Mr EF was a great worker and if there was a full-time position for him he would give it to him. He spoke to her in a very aggressive manner as he proceeded to go through a list of issues and accusations in respect of problems that had arisen with clients during her maternity leave. He criticised her work and made her feel inferior to her replacement. He told the Complainant that she was not to go near any of the clients in respect of which issues were raised. He informed her that various clients had been lost while she was away and that she would have to get them back when she returned to work. Finally, Mr AB accused the Complainant of forging a signature/document, at which point she left the meeting. She did not, in fact, have the opportunity to discuss her return to work at all during this meeting apart from being told that she would be required to work certain days around Mr EF’s schedule. An agenda/notes and memo prepared by Mr AB arising from the meeting was produced in evidence. It was submitted that it comprised solely of a list of complaints and problems including phrases such as “total mess” and “not his signature on form”. It was also unfairly alleged that her handling of another file resulted in a loss of €4,500 to the Company. Furthermore, the second page lists issues that had arisen commencing on 28th June 2013, being the date after the Complainant commenced her maternity leave. Finally, the third page refers to income and performance issues apparently relating to the Complainant. Whilst the memo states that a part-time work option and income generated to date were also discussed, the Complainant contends that all that was discussed at the meeting was the third item listed on the agenda i.e. ‘errors and issues’. The Complainant was not given any notice of Mr AB’s intention to discuss these issues at her return to work meeting and hence had not been able to prepare a response particularly in relation to the serious allegation of forgery. She had never been subjected to any disciplinary action. She felt that it was clear from Mr AB’s treatment of her at the meeting that he did not want her to return to work. She reported this meeting to another Director by telephone and he informed her that he would speak to Mr AB.

3.11 The manner in which the Complainant’s return to work meeting was conducted caused her considerable stress and she attended her GP on 26th May 2014 and was certified as unfit to work due to work-related stress. The Complainant has remained on certified sick and has received medical treatment in relation to her work-related stress. She had been ready, willing and able to return to work but following Mr AB’s treatment of her at the return to work meeting, has been unable to return to work. As a result, she is at a considerable loss including the loss of her book of clients. Under questioning, it was put to her that her sick leave also related to other issues including back issues. However, she confirmed that she had had to go on anti-depressants arising from the conduct of the meeting on 23rd May 2014.

3.12 By letter dated 26th May 2014, the Respondent wrote to the Complainant in respect of her request for a three-day working week. She had never in fact requested a three-day week and had requested a short-term three/four-day week on an alternative weekly basis to incorporate one to two days per week parental leave until she could make appropriate child care arrangements. She is of the view that her request was framed by the Respondent as a request for a three-day week to accommodate her replacement, Mr EF staying on rather than accommodating her return work. The letter further stated: “Any other issues which have arisen while you have been on maternity leave can be addressed after your return to work.” Similar to the way in which her return to work meeting was conducted, she felt that she was being blamed for a list of problems that had occurred whilst she was on maternity leave and found this phrase threatening and stressful. She was too upset to respond to the subsequent correspondence received from Mr AB regarding returning on a part-time basis. An issue also arose from written requests from Mr AB in August 2014 to have an occupational nurse call to her home to assess her. Whilst she had no difficulty with undergoing a health assessment, she objected to the nurse coming to her home.

3.13 Solicitors for the Complainant submitted the complaint form herein on 7th October 2014. By letter dated 27th October 2014, the Complainant raised a formal grievance with the Respondent in relation to the aforesaid issues and requested that it be dealt with by an independent investigator as set out in a letter produced at the hearing. By letter dated 6th November 2014, Mr AB responded by sending her a staff handbook which she had never seen or received previously. The letter also confirmed that another Director, Mr CD had been appointed to liaise with the Complainant in an attempt to deal with the matter on an informal basis. Solicitors on behalf of the Complainant replied by letter dated 18th November 2014 requesting again that in the circumstances an independent investigator be appointed. By letter dated 8th December 2014, the Respondent suggested the name of an independent investigator. There was a further exchange of correspondence in relation to her unsuitability and impartiality as both Parties had had previous dealings with her. Eventually another independent investigator was appointed and undertook an investigation in relation to the Complainant’s grievance. This investigator found a considerable conflict between the statements of the Parties in relation to several key areas, primarily in relation to the context and interpretation. Although finding shortcomings in the manner in which Mr AB had managed the Complainant’s maternity leave and return to work meeting, he concluded that there was no malice on his part and that he had fulfilled his obligations under the Maternity Protection Acts. He concluded that “…there is a question over the lack of substantial and witnessed evidence to conclude that an equality claim exists.” and recommended ‘meaningful discussions’ to broker a solution. Unfortunately, no solution could be brokered and as at the day of the hearing, the Complainant remained on sick leave.

3.14 It was submitted on behalf of the Complainant that she had been discriminated against on the grounds of gender and family status contrary to Sections 6(1), 6(2)(a), 6(2)(c) and 8 of the Employment Equality Acts in relation to the conditions of her employment surrounding her maternity leave as set out above and that the Respondent had failed to rebut same. Reliance was also placed on well-established legal authorities on the special protected period of pregnancy and maternity leave which are set out in more detail below. Particular reliance was placed upon the similar facts, grounds of discrimination and findings in Gardiner -v- Human Resources Consulting DEC-E2006-007.

4. SUMMARY OF THE RESPONDENT’S SUBMISSIONS & EVIDENCE

4.1 Mr AB, Director of the Respondent and the Complainant’s employer confirmed that he had set up the insurance business in question in 2010 along with two other Directors who were not active in the day-to-day business. The Complainant had been the only employee initially and had worked alongside him in the office. Mr EF had previously worked for the Respondent for a period but when he had been unable to reach the new business targets set for him he left voluntarily. He had been brought back on a Jobbridge Scheme during the Complainant’s maternity leave. Mr AB wholly refuted the Complainant’s complaints in relation to the manner in which she had been treated and contended that he had fulfilled his obligations in relation to her maternity leave. In January 2013 when he became aware of the Complainant’s pregnancy, he informed her that the Respondent did not pay maternity leave pay. She had said she was willing to continue to assist with clients and was happy to take calls and queries from the office during her maternity leave. He had spoken with the other Directors about two weeks later and it was agreed to make a monthly payment of €250 to the Complainant during her maternity leave in addition to any social welfare payments she was likely to receive and this was communicated to the Complainant at the time. He produced a memo confirming the date in question. On 20th August 2013 and 11th December 2013, at the Complainant’s request, the Respondent confirmed in writing, presumably for social welfare purposes that she was not being paid maternity pay other than that €250 per month. Furthermore, the Complainant had been put in contact with someone in the same building for the purposes of helping her to establish her social welfare entitlements during her maternity leave.

4.2 Mr AB said he had made a decision early on to look after the Complainant’s clients during her maternity leave. He denies that the Complainant was put under pressure to clear her desk. He said he was wholly unaware that she was suffering from work-related stress prior to going on maternity leave and the hospital certificate dated 18th April 2013 did not indicate this. There are multiple reasons as to why a pregnant woman such as the Complainant would suffer from high blood pressure. At no time during this period did she ask for any assistance. She was given a choice as to when to commence her maternity leave. Mr AB also denied making the derogatory comment allegedly made to the Complainant on 24th June 2013 during a conversation about her maternity leave. He agrees that the telephone conversation between himself and the Complainant from the hospital on 27th June 2013 occurred but not in the manner alleged. He was simply agreeing with her that she should start her maternity leave immediately given the medical advice and in so far as any handover of work was concerned, this could be done at a later date. He said that he has three boys himself and would not have spoken to the Complainant harshly.

4.3 In relation to contact during the Complainant’s maternity leave during the week prior to the birth of her son, Mr AB said that he had no recollection of a call being made on 1st July 2013 telling her that she had made a mess of a particular file. He denied that Mr EF was employed as her replacement or that he wanted to replace her with Mr EF. He had commenced working in the office towards the end of December 2013 on a Jobbridge contract. Mr AB agreed that he was in contact with the Complainant during her maternity leave on occasion but not with the frequency alleged. She had been contacted to determine how best to deal with two challenging clients with whom she had a good working relationship.

4.4 In relation to his conversation with the Complainant about taking her statutory entitlement to additional maternity leave, Mr AB denied that he said anything to dissuade her from taking the additional leave or to negate her statutory rights. He accepted that he had said: “That is not what I wanted to hear.”,

4.5 as he was under pressure and had hoped that she would return to work after her initial period of maternity leave and anything said was within that context. Insofar as the Complainant had chosen to take additional maternity leave she was not discriminated against in relation to that decision.

4.6 In relation to the allegation of continual contact during her maternity leave, Mr AB denied that it was as frequent as alleged and contended that any contact during this time was in the Complainant’s interests. As she earned commission from insurance renewals, it was important to ensure that her clients did not renew with other brokers. On 9th May 2014, when he met with the Complainant, she had insisted on taking a file for the renewal of insurance so that she could visit the client herself and not at his direction.

4.7 Mr AB denied refusing to accommodate the Complainant’s request for parental and/or part-time leave. He agreed that she had asked to return to work on a part-time basis. He had indicated to her that the position was full-time but he would see if the Company could accommodate her. He had met with the other Directors on 19th May 2014 and they agreed to facilitate her as best they could. On the same date, it was indicated to her that with Mr EF filling in they could facilitate her part-time work request until the end of his contract which was due to expire on 23rd of August 2014 (including a three-month extension).

4.8 Mr AB had a different recollection to that of the Complainant as to their exchange during their meeting on 23rd May 2014. Whilst the Complainant had referred to this meeting as a return to work meeting, Mr AB referred to it as an annual performance review, which had been carried out in previous years. He agreed that he had bought some problems with the Complainant’s files to her attention and that this was done to prevent a re-occurrence of errors and to guide the Complainant. These had come to light when he had had the opportunity of checking her files in her absence. It was certainly not intended to dissuade her from returning to work and it was evident from his offer of part-time work that he wished her to return to work. In relation to the allegation that the Complainant had forged his signature/document, a client had alleged that his signature was forged on a renewal of insurance. It was therefore necessary for Mr AB to investigate this matter and at no time did he make any allegation that the Complainant had forged the signature and simply pointed out that the allegation had been made by a client. At no time did he accept that the allegation was true. The Complainant had wanted to meet the client about the allegation but Mr AB felt that this was not the appropriate solution. He was looking forward to and preparing for her return to work and her allegation that he did not want her to return is simply untrue. Other memos in respect of Mr AB’s previous performance reviews were furnished during the hearing. They suggest frustration at the lack of business generated by the Complainant and actions required to generate more business in the future. Mr AB’s memo from a meeting dated 28th February 2012 stated: “This was not the scenario on which employed.” and “Only reason still here is because we like person.” When questioned, Mr AB agreed that the timing of bringing up these issues had not been the best.

4.9 Mr AB confirmed that he wrote to the Complainant on 26th May 2014 and confirmed a return to work date of 5th June 2014. The latter agreed to return to work on a part-time basis for a three-month period. The letter requested the Complainant to indicate which three days she would work. A further letter of 13th June 2014 asked the same question. A further letter of 26th June 2014 stated that on the failure of the Complainant to nominate her chosen workdays, the Company would nominate Tuesdays, Wednesdays and Fridays. This correspondence also acknowledged the Complainant’s sick-leave and asked her to obtain a return to work approval certificate from her GP when she was well enough to return. Mr AB contended that the Complainant had not engaged adequately with the Respondent during this period. He also contended that the Respondent cannot be held accountable for organising Mr EF to look after the Complainant’s workload on the days she did not attend work during her intended part-time work.

4.10 Mr AB also outlined the exchange of correspondence referred to above by the Complainant in relation to her grievance of 27th October 2014 and its efforts to deal with same including acceding to her request for a different investigator when she rejected the first one as not being impartial. It was contended that it was reasonable to seek reasons as to why the first investigator was being rejected. Mr AB had also written to the Complainant on 11th August 2014 suggesting a visit by an occupational health nurse to assess the cause of her stress and what action could be taken by the Respondent to accommodate her. He had sent her a reminder on 26th August 2014 but she failed to agree to this course of action.

4.11 When questioned, Mr AB agreed that the business set-up had been difficult and he had put himself under considerable pressure working long hours to manage all of the business himself without assistance as he could not afford staff given the disappointing level of business generated. He also accepted that he had not received any formal HR training in relation to employment and equality rights.

4.12 Overall, the Respondent denies that it discriminated against the Complainant as alleged or at all. A staff manual was prepared in 2014 to adhere to all relevant employment and equality legislation and was circulated to all staff. A copy was forwarded to the Complainant on 6th November 2014. Whilst Mr AB accepts that he was not experienced in dealing with maternity leave or requests for part-time work, he was aware of and acknowledged the protected position of the Complainant during her maternity leave. The Respondent had been reasonable and the Complainant’s return to work was extended to 5th June 2014 to allow her to add any unused accumulated holidays from 2012 and 2013 even though her contract of employment did not allow for carryover. It was submitted that any issues that arose between the Parties were unrelated to the Complainant’s pregnancy and further, that some of the issues complained of occurred outside of the protected maternity leave period. The Respondent also relies on Section 15(3) of the Employment Equality Acts in that it had in place an appropriate grievance and harassment procedure.

5. FINDINGS AND CONCLUSIONS

5.1 The issue for my decision herein is therefore whether the Complainant was discriminated against on the grounds of gender and race within the meaning of the Employment Equality Acts as contended. The facts adduced must be assessed in relation to the relevant legal provisions. Section 6(1) of the Acts provides: “For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where- (a) a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the ‘discriminatory grounds’) which- (i) exists, (ii) existed but no longer exists, (iii) may exist in the future, or (iv) is imputed to the person concerned,” In relation to discrimination on the grounds of gender and race, respectively, Section 6(1)(2) provides: “As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are- (a) that one is a woman and the other is a man (in this Act referred to as “the gender ground”),” and “(c) that one has family status and the other does not (in this Act referred to as ‘‘the family status ground’’),” Section 8(1) of the Acts defines discrimination in specific areas including conditions of employment which forms the basis of this claim. Section 85A of the Employment Equality Acts sets out the burden of proof which applies to all claims of discrimination and requires the Complainant to establish, in the first instance, facts from which discrimination may be inferred. It is only where such a prima facie case has been established that the onus shifts to the Respondent to rebut the inference raised as per Mitchell -v- Southern Health Board (2001) ELR 201.

5.2 In arriving at my decision, I am cognisant of the special protected position of pregnant women in employment and requirement that they are treated with respect as set out in the leading national [e.g. Trailer Care Holdings Limited -v- Deborah Healy (2012) Labour Court EDA 128] and international authorities [e.g. C-177/88 Dekker -v- Stichting Vormingscentrum voor Junge Volwassenen (1990) ECR 1-3841], national [The Employment Equality Acts] and EU law [Art 23 of the Charter of Fundamental Rights of the EU, Directive 2006/54/EE - the Recast Directive & 92/85/EEC - the Pregnancy Directive]. They also provide that as pregnancy is a uniquely female condition, any adverse treatment on the grounds of pregnancy is considered as direct discrimination on ground of gender.

5.3 Firstly, I note the conflicting and divergent accounts of the Parties in relation to the facts giving rise to this complaint and take the view that over time, they have become increasingly entrenched in their respective positions which have become magnified as the unresolved work situation has been allowed to fester. I suspect that the truth of the matter lies somewhere in the middle and propose only making findings in relation to the facts that are undisputed between the Parties. Secondly, there are several unusual features in relation to the Parties’ working relationship which served to compound their difficulties including the fact that the Complainant was the only other employee at the material time and the nature of the insurance business is such that she had a book of clients whom she looked after. Thirdly, it is clear from the memos of previous performance reviews that relations between the Parties were already tense owing to the lack of new business resulting in a reduction of the Complainant’s salary and it appears that her maternity leave requirements brought matters to a head. Fourthly, I am also satisfied that in his dealings with the Complainant, Mr AB did not act with malice but conclude that he had set unrealistic targets for his employees and had become increasingly frustrated with the lack of new business, and consequently put himself and his other employees under undue pressure. Finally, I conclude that his relative lack of experience, knowledge and training in relation to HR management gave rise to many of the difficulties that arose in relation to the Complainant leading to the complaint herein.

5.4 Specifically, I make the following findings in relation to the matters complained of herein:

(a) I note that the Complainant’s contract of employment did not make provision for maternity pay and am satisfied that the Respondent acted reasonably in making an ex gratia monthly payment of €250 per month. I also note that information about statutory leave entitlements is readily available online and cannot conclude that it was the sole duty of the Respondent to inform the Complainant of same.

(b) However, I find that the Respondent was remiss in relation to the manner in which it handled the Complainant’s maternity leave. I accept both the Complainant’s evidence that she felt under pressure to clear her desk before she left for maternity leave and likewise, Mr AB’s evidence that he was not aware of the level of stress and pressure she was experiencing at the time. Had the Respondent conducted a Pregnancy Health & Safety Risk Assessment in accordance with its statutory obligations, this would have allowed for any risk factors involved to be identified and also for the necessary dialogue between the Parties as to what aspects of her work the Complainant was finding difficult and how she could have been facilitated, even if that required hiring extra assistance before her leave. In this respect, I am satisfied that although Mr AB was under too much pressure himself to engage properly with her needs and the handover, as her employer he had a statutory obligation to ensure that they were being met.

(c) Regardless of whether the Complainant agreed to being contacted by Mr AB, Mr EF or the clients or acquiesced with same, I am of the view that any work-related contact (save for any unforeseen or unavoidable emergencies arising) during the maternity leave period was inappropriate notwithstanding the close working relationship that the Complainant enjoyed with her clients. As the Complainant’s employer, the onus was on Mr AB to organise her work in such a way that she would not be bothered with work-related issues during her maternity leave, being a protected period under the legislation.

(d)Whilst I find that Mr AB’s response to the Complainant’s request for additional maternity leave to be insensitive, I am not satisfied that this amounted to discrimination under the Acts as the extra maternity leave was acceded to. Likewise, I am of the view that there was no discriminatory treatment in relation to the Complainant’s request for short-term part-time work and that the difficulties arose in relation to agreeing same as the trust and confidence in the employment relationship had broken down. However, given the Respondent’s treatment of the Complainant beforehand, I find her reaction to the Respondent’s proposals in terms of not responding and/or rejecting same to be understandable.

(e) Finally, I find Mr AB’s treatment of the Complainant’s return-to-work meeting on 23rd May 2014 as a performance review without giving her any notice of the issues to be discussed to enable her to prepare for same, to be wholly inappropriate in the circumstances. It is clear from the language used in Mr AB’s memo of the meeting that he was highly critical of the Complainant’s work. Notwithstanding the fact that this meeting arose outside of the protected maternity leave period, I am satisfied that this treatment was an extension of the earlier treatment and the Complainant’s reaction to same was justified.

For the aforesaid reasons and having regard for the special protected position of pregnancy and maternity leave, I am satisfied that the Complainant has made out a prima facie case of discrimination on the ground of gender in relation to her conditions of employment surrounding her maternity leave contrary to Sections 6(1), 6(2)(a) and 8 of the Employment Equality Acts and that the Respondent has failed to rebut same. However, I am not satisfied that the Complainant has made out a prima facie case of discrimination on the ground of family status contrary to Sections 6(1), 6(2)(c) and 8 of the Employment Equality Acts as the Respondent had agreed to her request for short-term part-time work to accommodate her family needs until she secured appropriate childcare, albeit not precisely on the terms requested.

6. DECISION

6.1 I have concluded my investigation of the complaint herein and based on the aforementioned, I find pursuant to Section 79(6) of the Act, that the Complainant has made out a prima facie case of discrimination on the ground of gender contrary to Sections 6(1), 6(2)(a) and 8 of the Employment Equality Acts in relation to the conditions of her employment surrounding her maternity leave and the Respondent has failed to rebut same.

6.2 In accordance with Section 82 of the Act, I order the Respondent to:

(a) Within 42 days of the date herein, pay the Complainant €16,500 in compensation for the finding of discrimination on the ground of gender in relation to her conditions of her employment. I have arrived at this award having regard to the effects of discrimination on the Complainant who was clearly very upset at the events giving rise to this complaint and the impasse regarding her future employment with the Respondent which unfortunately remained unresolved as at the date of the hearing. The award equates to approximately six months’ salary and is arrived at having regard to the requirement pursuant to Article 17 of the Framework Directive that the sanction be “effective, dissuasive and proportionate”.

(b) Whilst acknowledging that the Respondent has remedied matters to some extent with the introduction of a staff handbook, I further order, as per Section 82(1)(e) of the Acts, that it conducts a review of its procedures in relation to its employment policies, including a requirement that its staff undertake such training as is necessary to ensure that it is in compliance with the Employment Equality Acts with particular reference to the gender ground and maternity leave.

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Aideen Collard

Adjudication Officer

14th November 2016