DEC-E2017-026

EMPLOYMENT EQUALITY ACTS

Decision - DEC–E2017-026

PARTIES

A Complainant

(represented by Ms. Susan Jones B.L. on the instructions

of Jones Solicitors)

and

A Restaurant

(represented by Brady McGreevy Solicitors)

File References: et-152826-ee-15

Date of Issue: 6th April, 2017

1. Dispute

1.1 This case concerns a complaint by the Complainant that she was discriminated against by the Respondent on the grounds of Gender and Family Status contrary to sections 6(2)(a) and 6(2)(c) of the Employment Equality Acts in relation to her conditions of employment.

2. Background

2.1 The Complainant referred a complaint under the Employment Equality Acts to the Director of the Equality Tribunal on 27th January, 2015. In accordance with her powers under section 75 of the Employment Equality Acts, the Director General delegated the case on 27th September, 2016 to me, Enda Murphy, an Adjudication Officer/Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions under Part VII of the Employment Equality Acts. This is the date I commenced my investigation. A written submission was received from the complainant on 6th November, 2015 and from the respondent on 11th April, 2016. As required by section 79(1) of the Acts and as part of my investigation, I proceeded to hearing on 7th December, 2016.

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

3. Summary of the Complainant's case

3.1 The Complainant commenced employment with the Respondent as a Restaurant Supervisor on 17th February, 2014. She was required by her contract to work up to 48 hours per week over five shifts and was paid an annual salary of €24,000. The Complainant submitted that despite not having any previous experience of working in a restaurant she performed very well in the position in the initial stages of her employment. The Restaurant’s Owner, Mr. A, approached the Complainant in or around March, 2014 and suggested that she should opt to be paid on an hourly basis as that would allow her more flexibility. The Complainant continued to work under the existing arrangements for a number of weeks thereafter but in or around Easter, 2014 she decided to accept the owner’s offer and work on an hourly basis over four shifts per week. The Complainant’s initial three-month performance review took place on 28th May, 2014 during which she was given a “glowing review” and the Respondent did not raise any issues whatsoever in relation to her performance or ability to carry out the full range of her duties.

3.2 On 19th June, 2014 the Complainant informed the Respondent that she was pregnant after she had to take the day off work to attend the Emergency Department of a hospital over concerns regarding the status of her pregnancy. The Complainant was only seven weeks pregnant at that juncture but decided to disclose the news of her pregnancy at an early stage as she wanted to be honest and upfront with Respondent. The Complainant returned to work following a period of pregnancy related sick leave on 7th July, 2014 and the Respondent spoke to her about hiring a new Restaurant Supervisor during an unscheduled “sit down” which took place that week. The Complainant was informed by the Restaurant Owner at this meeting that her job would be available should she wish to return after maternity leave but also intimated “who would want to return to work with three small kids at home”.

3.3 The Complainant submitted that things started to change for her in the workplace after she announced her pregnancy and she referred to the following examples:

There was a change of sentiment towards her in a subtle manner and she was excluded upon her return to work from participating in a marketing programme and the development of a wine list for the restaurant.
The Restaurant Manager (Mr. B) began to avoid her and the routine hand over of duties conversations in between their respective shifts which had routinely taken place up to that juncture no longer took place. The Restaurant Manager’s chosen method of communication from thereon was by way of text messaging which the Complainant felt was inappropriate.
Both the Restaurant Owner and the Restaurant Manager took holidays during the same week without notifying her leaving her as the only senior staff member and she was left with no contact for senior management in the event that any difficulties arose.
In or around the 18th July, 2014 the Restaurant Manager rostered her to work six consecutive nights including the weekend nights which had later closing times (i.e. resulting her being rostered to work a total of 51 hours approx.) which was not the normal practice.

· On a number of occasions the Restaurant Manager undermined her authority by telephoning a more junior member of staff to check that all was okay in the restaurant even though she was on duty at the time.

3.4 On the 12th August, 2014 the Complainant met with the Restaurant Owner and outlined her frustration over events during the preceding weeks. She also sought clarification in relation to her role as Restaurant Supervisor as she felt that it had changed over the previous weeksand she also raised the issue of poor communications which had arisen. This meeting concluded with the Restaurant Owner indicating that he wished to sit down with the Complainant and the Restaurant Manager to discuss these difficulties with a view to moving forward.

3.5 The Complainant attended a meeting with both the Restaurant Owner and Restaurant Manager on 15th August, 2014 to discuss these matters. However, this meeting did not play out as she had expected and instead turned out to be a performance review and disciplinary meeting. The Complainant submitted that she did not receive any prior notification that the meeting would be a performance review and rather than rebuilding relations, the meeting turned out to be an attack on her performance. The Restaurant Owner told her during this meeting that she had struggled with the work and the hours from the start, was tetchy at being corrected, had conflict with the head chef and that the Restaurant was in chaos during her shifts.

3.6 The Complainant voiced her concern as to why these issues had not been raised at her three month performance review. She pointed out that her role had changed in recent weeks and it was stated to her that this had occurred due to her inability to work five shifts, which was the first time that this had ever been raised. It was also put to her that if she had genuinely wanted to fulfil all of her objectives that she would have come into work on her own time and engage in a self-learn approach. The Restaurant Owner voiced concern at her body language as the meeting drew to a close and it was also put to her that it was her inability to communicate that had led to the requirement for this meeting. The meeting concluded with the Restaurant Owner stating that he wasn’t entirely sure that the Restaurant was the place for her and to think really carefully about that and what she wanted to do. The Complainant left the meeting extremely upset and as a result of her treatment and subsequently attended her doctor on Monday, 18th August, 2014 as she was feeling unwell. She was certified unfit to work due to acute stress.

3.7 The Complainant attended a further meeting with the Restaurant Owner and Ms. C (the Respondent’s HR Representative) on 27th August, 2014, the purpose of which was to establish her role in the Restaurant. The Complainant was informed at this meeting that if she was unable to work five shifts and a 48 hour week that there would be no position for her. She informed Ms. C about the upset and distress caused as a result of the previous meeting with the Restaurant Owner and the Restaurant Manager. This meeting concluded with Ms. C agreeing to meet with the Restaurant Manger to discuss the events that took place at the meeting on 15th August, 2014.

3.8 The Complainant attended a further meeting with Ms. C on 25th September, 2014 who confirmed that she had met with the Restaurant Manager to discuss these matters. Ms. C indicated that the Restaurant Manager had confirmed that the meeting on 15th August, 2014 had been a performance review but that it had not been harsh or over the top. Ms. C asked the Complainant where she wanted to go from there and she again felt like she was being pressurized into quitting her job. The Complainant was still absent on sick leave at that juncture and confirmed that she wanted to return to work. However, Ms. C indicated that she could only return to work if she agreed to work the five shifts and 48 hours per week and that this was the only role on offer. The Complainant expressed her confusion around this and indicated that the Restaurant Owner had put in place the pay by hour four shifts per week arrangement. Ms. C indicated that the Restaurant Owner had no place in doing this and had not followed proper procedures in implementing this arrangement. The Complainant informed Ms. C that she was considering putting forward a formal grievance due to the unfair treatment she had been subjected to and the adverse impact that this had caused. Ms. C informed the Complainant that she would speak to the Restaurant Owner and get back to her.

3.9 The next communication that the Complainant received from the Respondent was an e-mail from Ms. C on 30th September, 2014 informing her that the Restaurant Owner was happy to include her on the roster for the week beginning the 7th October, 2014 (as her sick cert was due to expire on the 5th October, 2014). There was no reference to the previous meeting on 25th September, 2014 or any follow up on the shift pattern the Restaurant Owner was proposing to include her on. The Complainant attended her doctor on 3rd October, 2014 and was certified unfit to work until the 2nd November, 2014. The Complainant received an e-mail on Ms. C on 9th October, 2014 informing her that an appointment had been made with an Occupational Therapist which she attended on 11th November, 2014. The Complainant was diagnosed by the Occupational Therapist as having a “chronic stress reaction” and it was recommenced that she was unfit for work.

3.10 The Complainant submitted a formal grievance to Ms. C on 20th October, 2014 in relation to the aforementioned treatment and made it clear that she felt this treatment was directly related to her pregnancy. On the 29th October, 2014 a grievance meeting took place with Mr. D (the Restaurant Owner’s brother and Director of the Respondent). Mr. D indicated at the meeting that he was not familiar with the details of the grievance despite her having submitted a detailed document setting out the grounds of her grievance. The Complainant claims that Mr. D failed to adequately investigate her grievance and his main concern related to her hours of work. The Complainant made it clear to Mr. A that she wanted to return to work but needed the grievances addressed prior to her return. The meeting concluded with Mr. D agreeing to meet with his brother, the Restaurant Owner and the Restaurant Manager to investigate the grievance.

3.11 The Complainant received a telephone call from Mr. D on 4th November, 2014 who wanted to meet with her at short notice. This meeting took place on 7th November, 2014 and Mr. C indicated that he had spoken to the Restaurant Manager about her hours and returning to work. Mr. D showed the Complainant a sample four day roster and suggested that if she was satisfied with those hours she could return to work on 16th November, 2014. The Complainant pointed out that the content of her grievance had still not been addressed and that she needed these matters addressed before she could return to work. The Complainant submitted that Mr. D appeared to be “a little miffed” at this and indicated that this investigation would take longer to achieve an outcome as he would have to sit down individually with the Restaurant Owner, the Restaurant Manager and Ms. C. The Complainant claims that it was clear by the end of this meeting that Mr. D had not read or taken seriously the substance of her grievance or understood the mistreatment that had occurred since she announced her pregnancy.

3.12 On Monday 24th November, 2014 the Complainant met with Mr. D again to hear the findings and his conclusions following the investigation of her grievance complaint. The conclusion reached by Mr. D was that her grievance was unfounded. The complaint in relation to the treatment the Complainant had suffered since announcing her pregnancy was not addressed and Mr. D simply disposed of her complaint by dealing with it as being solely to do with her hours of work. The conclusions by Mr. D indicated that the Complainant was struggling with her work. However, this finding was disputed by the Complainant as being totally untrue as the Respondent had never raised any issues in relation to her performance prior to the announcement of her pregnancy. The Complainant also disputes the finding that she was having difficulty regarding her hours of work or the rosters. She only questioned her roster twice and both of these occasions’ concerned incidences where she was rostered to work on five or more consecutive late shifts. The Complainant claims that she had not been rostered to work such demanding shift patterns prior to the announcement of her pregnancy. The Complainant claims that the investigation by Mr. D was biased and totally lacking in fairness given that Mr. D was Restaurant Owner’s brother and a Director of the Company.

3.13 In summary, the Complainant claims that the Respondent changed her hours of work and then reneged on this agreement when he saw fit. This was followed by huge pressure being applied on her by the Respondent to resign from her position. The Complainant submitted that she had no difficulty with the work, the Respondent or any of her work colleagues prior to her pregnancy and it was only after the announcement of her pregnancy that the discriminatory treatment started to occur. The Complainant claims that she made numerous attempts to have her grievances addressed by the Respondent but was left with no option but to refer the present complaint. The Complainant subsequently resigned from her position on 20th November, 2015 as a result of the treatment she was subjected to by the Respondent following the announcement of her pregnancy.

4. Summary of the Respondent’s case

4.1 The Respondent’s restaurant has been in operation since 2013. The Complainant was hired as a Restaurant Supervisor in or about 17th February, 2014. She had no background or experience in the restaurant trade but expressed an eagerness to develop restaurant managerial experience. The Restaurant Owner (Mr. A) was impressed by her eagerness and felt that this eagerness together with the experience she brought from her past employment history could lend itself to the position of Restaurant Supervisor. It became apparent that her lack of experience was causing her problems and the Restaurant Owner suggested that she reduce her workload and hours to reduce the pressure he perceived that she was under. The Complainant was initially reluctant to do so but subsequently requested that her hours be reduced which involved reducing her workload and the role as well.

4.2 Under the reduced role the Complainant was floor supervisor during her shifts but she wasn’t really involved in the overall management of the restaurant. Additionally, as time went on she asked that her roster be changed so that she would not have to come in at 1:00 pm. The Respondent acceded to this request and her shifts started at 3:00 pm thereafter. Subsequently, the Complainant asked that her shifts commence at 5:00 pm and again this requested was granted. There was a review of the Complainant’s performance after the initial three months and she was given a favourable review. In August, 2014 the Complainant approached the Restaurant Owner complaining that the Restaurant Manager (Mr. B) was not there to meet her when she started her shifts at 5:00 pm.

4.3 The Complainant asked for a meeting with the Restaurant Owner and they met on 12th August, 2014 being the following day at the Respondent’s sister restaurant. The Complainant reiterated that she was unsettled by reason of the Restaurant Manager’s failure to be in the premises at the hand over period or during the hand over period and that his contact with her was limited to text or notes. The Restaurant Owner suggested that all three should meet so that communication between them could be addressed and improved where necessary.

4.4 The Restaurant Owner and the Restaurant Manger met with the Complainant and on the 15th August, 2014. The Respondent disputes the Complainant’s contention that this was a disciplinary meeting but rather a meeting to address the issues of communication which she had raised. The issue of the hand over was addressed at this meeting and the Restaurant Manager confirmed that he would put a more formal process in place in relation to the hand over. The Restaurant Owner also suggested that the Complainant could take the initiative and come in earlier than 5:00 pm to facilitate a more structured hand over. The Respondent submitted that if the Complainant was still interested in a management position then she had to show more initiative. At this meeting the Complainant took out her job description which she had obtained when she initially started and the Restaurant Owner explained that the job description had changed by reason of her reduced hours. The Restaurant Owner explained to the Complainant that it was not possible to perform the tasks and floor supervisor within the hours which she was working. The management aspects of running the restaurant were taken on by the Restaurant Owner and the Restaurant Manager as a result of her reduced hours.

4.5 The meeting was concluded by the Restaurant Owner saying that it was apparent that there would need to be further meetings to address the issues which included the Complainant’s job description. The Restaurant Manager was positive towards such an approach but the Restaurant Manager’s memory was that the Complainant threw her eyes to the ceiling and muttered something which he perceived as derogatory towards the Restaurant Manager under her breath. Subsequent to that meeting the Complainant was absent from work due to stress related illness and she also initiated the grievance procedure regarding her complaint. Ms. C who is engaged in the capacity as a HR Representative for the Respondent met with the Complainant to address her concerns. The Complainant wanted to pursue a grievance complaint and she submitted this grievance under the Respondent’s Grievance Procedures and this was addressed by Mr. D (Company Director) having met with the Complainant and the other parties mentioned above. An inquiry was undertaken by Mr. D who had no active part to play in the factual circumstances giving rise to the complaint. After an investigation into the matter Mr. D concluded that the compliant had been ill founded.

4.6 The Respondent rejects the Complainant’s claim that she was mistreated by reason of her pregnancy and on the contrary it submits that it was supportive of her after she announced the fact of her pregnancy. When the Complainant required time off work either due to her pregnancy or illness of her children this was accommodated by the Respondent. Prior to her announcement that she was pregnant, when the Complainant took on the full role of restaurant supervisor which incorporated some management responsibilities and it was apparent that this entire workload and hours were too much for her, the Respondent engaged with her at an early stage asking her to consider reducing the hours and role. Whilst the Complainant did not want to do so initially she reflected on same and sometime later requested that the role and the hours be reduced. This was accommodated by the Respondent. At two further junctures when she sought to reduce her hours once again this was accommodated notwithstanding the difficulties that this caused within the organisation. In August, 2014 when the Complainant raised concerns, the Restaurant Owner met with her to hear her concerns fully and then arranged a further meeting with the Restaurant Manager so that the concerns could be fully aired. The Respondent submitted that the Restaurant Owner had an open door policy with all members of staff including the Complainant.

4.7 In summary, the Respondent claims that there were difficulties in relation to the Complainant’s performance both prior to and after the announcement of her pregnancy and it denies that she was subjected to an adverse change in relation to her conditions of employment because of her pregnancy or family status. The Respondent claims that the Complainant was experiencing difficulties in managing the workload required of her position from the outset of her employment and that it actively engaged with her and accommodated her by reducing her hours prior to the announcement of her pregnancy. The Respondent denies that the Complainant was subjected to discriminatory treatment on the grounds of gender or family status in relation to her conditions of employment.

5. Conclusions and Findings of the Equality Officer/Adjudication Officer

5.1 The issue for consideration by me is whether or not the Respondent discriminated against the Complainant on grounds of gender and/or family status in terms of section 6(2) of the Employment Equality Acts and contrary to section 8 of that Acts in relation to her conditions of employment. In reaching my decision I have taken into account all of the evidence, written and oral, submitted by the parties.

5.2 Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination. It requires the Complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination in relation to her. If she succeeds in doing so, then, and only then, is it for the Respondent to prove the contrary. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of “sufficient significance” before a prima facie case is established and the burden of proof shifts 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. It is only where such a prima facie case has been established that the burden of proving there was no infringement of the principle of equal treatment passes to the Respondent.

5.3 Section 6(1) of the Employment Equality Acts provides that discrimination shall be taken to occur where “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)…..”. Section 6(2)(a) of the Acts defines the discriminatory ground of gender as follows – “as between any 2 persons, ... that one is a woman and the other is a man" and section 6(2)(c) of the Acts defines the discriminatory ground of family status as follows – “as between any 2 persons, ... that one has family status and the other does not".

Gender Ground

5.4 I will firstly examine the claim of discriminatory treatment on the ground of gender. The case-law of the European Court of Justice (as has been held in the cases of Webb –v- Emo Air Cargo[1], Brown –v- Rentokil Ltd[2] and Dekker –v- Stichting Vorm.[3]) makes it clear that any unfavourable treatment of a woman related to pregnancy or maternity constitutes direct discrimination on grounds of gender. It therefore follows as a matter of law, that to treat a woman less favourably because she is pregnant is to discriminate against her because she is a woman. The Labour Court held in the case of Moonlite Cleaning Services Limited –v- Jolanta Drabik that “It is abundantly clear from a line of authorities starting with the decision in C-177/88, Dekker v Stichting Vormingcentrum voor Junge Volwassenen [1990] ECR 1-3841and from the legislative provisions of the European Union that women are to be afforded special protection from adverse treatment from the commencement of their pregnancy until the end of their maternity leave. The entitlement to that protection is to be regarded as a fundamental and inviolable right within the legal order of the Union which the Courts and Tribunals of the Union must vindicate within the limits of their jurisdiction.”.

5.5 In the present case the Complainant claims that she was subjected to discriminatory treatment by the Respondent on the grounds of gender in relation to her conditions of employment after she announced her pregnancy. The Complainant claims that there was a negative change in sentiment and attitude towards her in the workplace after she announced her pregnancy. She claims that the Respondent subsequently reneged on an agreement reached prior to the announcement of her pregnancy in relation to her hours of work which culminated with her being subjected to a performance review/disciplinary hearing during which she was admonished in relation to her performance. The Complainant submits that she initiated a formal grievance in relation to the adverse treatment that occurred following the announcement of her pregnancy but claims that the Respondent failed to adequately investigate the matter.

5.6 The Respondent claims that there were difficulties in relation to the Complainant’s performance both prior to and after the announcement of her pregnancy and it denies that she was subjected to any adverse changes in relation to her conditions of employment because of her pregnancy. The Respondent claims that the Complainant was experiencing difficulties in managing the workload required of her position from the outset of her employment and that it actively engaged with her and accommodated her by reducing her hours and modifying her shift pattern prior to the announcement of her pregnancy. The Respondent claims that when the Complainant raised concerns in relation to her conditions of employment and subsequently initiated a grievance complaint that these issues were addressed and investigated in an appropriate manner by management and that the complaints were held to be unfounded.

5.7 The Complainant commenced employment with the Respondent in February, 2014 as a Restaurant Supervisor and it was common case that she hadn’t any prior experience of working in the restaurant trade. I note that upon the commencement of her employment the Complainant was required to work five shifts and up to forty eight hours per week under the terms of her contract. It was not in dispute that the Respondent approached the Complainant in or around late March, 2014 and suggested a change to her working hours which would result in a reduction in the number of shifts and hours that she would be required to week per week. The Complainant was initially apprehensive about accepting this offer but subsequently agreed to the change as suggested by the Respondent on the understanding that it would afford her greater flexibility and would be more beneficial to her financially.

5.8 The Respondent gave evidence that the Complainant was struggling to cope with the demands of the position from the outset of her employment and claims that this was the reason why the Restaurant Owner (Mr. A) suggested the changes to her working hours and shift pattern. However, based on the evidence adduced, I am satisfied that the Respondent neither raises any concerns with the Complainant in relation to her performance up to that juncture nor did it inform her that the reason for the proposed change to her terms and conditions of employment was in any way attributable to her inability to perform to the level required of the position. Indeed, the converse situation would appear to have been the case and I am satisfied from the evidence adduced, that notwithstanding the Complainant’s lack of experience in the sector, the Respondent did not raise any concerns in relation to her performance during the initial stages of her employment. I am supported in reaching this conclusion by the fact that it was common case that the Complainant was given a very favourable review following her initial three monthly performance review on the 28th May, 2014.

5.9 It was not in dispute that the Complainant informed the Respondent of her pregnancy on the 19th June, 2014 after she had taken a day’s absence from work for reasons connected to her pregnancy. The Complainant was subsequently absent from work for a period of time due to pregnancy related illness and returned to work on the 7th July, 2014. Having regard to the evidence adduced, it is clear that there was a deterioration in the working relationship between the parties during the period after the Complainant’s return to work and I am satisfied that any concerns or issues which the Respondent had with her performance were only brought to her attention following the announcement of her pregnancy. The Complainant adduced evidence that the Respondent’s attitude and treatment of her changed in a subtle manner thereafter and she gave evidence in relation to a number of incidences of such treatment including her exclusion from involvement in certain aspects of the work and from participating in managerial duties, difficulties in communications with the Restaurant Manager and the Restaurant Owner and on occasions being scheduled to work excessively demanding shifts.

5.10 The difficulties that had developed in the working relationship between the Complainant and the Respondent in terms of the adverse effect on her conditions of employment came to a head during a meeting between the parties on 15th August, 2014. There was a dispute between the parties regarding the exact nature and purpose of this meeting. The Complainant, on the one hand, claims that this meeting was conducted in the guise of a performance review and disciplinary hearing during the course of which she was reprimanded and berated in relation to her performance. The Respondent, on the other hand, denies that this meeting was a disciplinary meeting or performance review but rather that the purpose of the meeting was to discuss the communication issues raised by the Complainant. Having regard to the evidence adduced, I have found the Complainant’s evidence on this issue to be more compelling, and while I accept that the meeting was not a disciplinary hearing in the strict sense, I am satisfied that the Respondent raised serious concerns in relation to her performance and ability to carry out her role as Restaurant Supervisor. Furthermore, I am satisfied that this was the first occasion that the Respondent had raised any such concerns or had provided the Complainant with any negative feedback in relation to her performance.

5.11 I note that the Complainant was subsequently certified unfit for wok due to an “Acute Stress Reaction” following this meeting on 15th August, 2014. I am satisfied that the negative sentiment and attitude by management towards the Complainant continued in the aftermath of this meeting. It is clear that the Respondent sought to reverse its position on the agreement which the Restaurant Owner had put in place with the Complainant in April, 2014 in relation to her hours of work and it was subsequently confirmed to her by Ms. C (HR Representative) at meetings on 27th August, 2014 and 25th September, 2014 that the only position available if she wanted to return to work was the forty eight hour and five shift per week pattern. The Complainant subsequently invoked a formal grievance on 20th October, 2014 in relation to her treatment following the announcement of her pregnancy which was subsequently investigated by Mr. D who is a brother of the Restaurant Owner and a director of the company. The investigation which was carried out by Mr. D in relation to the matter concluded that the Complainant’s grievances were totally unfounded and that there had been difficulties in her ability to perform the role both before and after she had announced her pregnancy.

5.12 Having regard to the evidence adduced, I do not concur with the conclusions of the Respondent’s investigation in relation to the Complainant’s grievances and I cannot accept that the difficulties which developed in the working relationship between the parties were totally unrelated to the fact of her pregnancy. It is clear that the Respondent’s attitude and sentiment towards the Complainant changed in a negative manner during the period following the announcement of her pregnancy which resulted in a diminution of the role and responsibilities that she had held up to that juncture. When the Complainant sought to raise this matter and clarify the scope of her role the Respondent responded by raising issues that she was not performing her duties to the required standard. I am satisfied that that the alleged issues in relation to the Complainant’s performance, which the Respondent claims existed both prior to and after she announced her pregnancy, only became an issue thereafter.

5.13 It is clear that the difficulties in the working relationship between the parties subsequently escalated further and the Respondent sought to unilaterally change terms and conditions of her employment by insisting that she would have to revert to working a 48 hour/five shift weekly pattern despite the fact that the Respondent had previously agreed to a less demanding working pattern prior to the announcement of her pregnancy. I am satisfied that the situation which developed in terms of the treatment afforded to the Complainant during the period after she announced her pregnancy and the adverse effect which this treatment had in relation to her conditions of employment ultimately resulted in her taking the decision to resign from her position.

5.14 The Labour Court in the case of A Technology Company v A Worker[4] in adopting the approach considered by the UK Court of Appeal in Wong v Igen Ltd & Others[5] stated that "if the protected factor or characteristic is more than a “ trivial influence" in the impugned decision, a claim of discrimination will have been made out". In the circumstances, I find that the Complainant has established a prima facie case of discrimination on grounds of gender in relation to her conditions of employment in respect of the treatment of her by the Respondent following the announcement of her pregnancy. In the same Decision the Labour Court also considered the standard of evidence which should be expected from a Respondent seeking to rebut an inference of discrimination. It adopted the reasoning of the Employment Appeals Tribunal for Great Britain in Barton v Investec Henderson Crosthwaite[6] (Gibson LJ) and held that since the facts necessary to prove a non-discriminatory explanation would usually be in the possession of the Respondent, the Court should normally expect cogent evidence to discharge that burden. Applying that test to the present case, I find that the Respondent offered no cogent evidence to rebut the inference of discrimination raised. Accordingly, I find that the Complainant was subjected to discriminatory treatment by the Respondent on the grounds of gender in relation to her conditions of employment.

Family Status

5.15 The Complainant has also claimed that she was subjected to discriminatory treatment in relation to her conditions of employment on the grounds of her family status. The Complainant claims that during the course of a meeting with the Restaurant Owner (Mr. A) which took place after she had announced her pregnancy that he informed her the position would be available following her return from maternity leave but also stated that “who would want to come back to work with three small kids at home”. The Restaurant Owner in evidence vehemently denied that he had made any such remark and stated that he had absolutely no difficulty with any of his female employees being pregnant or taking maternity leave.

5.16 On balance, I have found the Complainant’s evidence on this issue to be more compelling and I accept her evidence that the alleged remark was made by the Restaurant Owner during the course of the relevant meeting. In the circumstances, I find that the Complainant has established a prima facie case of discriminatory treatment on the grounds of family status in relation to her conditions of employment and that the Respondent has failed to rebut the inference so raised. Accordingly, I find that the Complainant was subjected to discriminatory treatment on the grounds of family status in relation to her conditions of employment.

6. Decision

6.1 Having investigated the above complaint, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts. I find that the respondent discriminated against the Complainant on grounds of gender and family status pursuant to sections 6(2)(a) and 6(2)(c) of the Acts, in respect of her conditions of employment contrary to section 8 of the Acts. Accordingly, I find in favour of the Complainant in this case.

6.2 In accordance with Section 82 of the Acts, I order the Respondent to pay the Complainant the sum of €12,000 by way of compensation for the distress suffered as a result of the discrimination (which represents approx. 6 months gross pay for the complainant). This figure relates to compensation for the effects of the discriminatory treatment and does not include any element relating to remuneration.

______________

Enda Murphy

Equality Officer/Adjudication Officer

6th April, 2017

Footnotes

[1] Case C- 32/93

[2] Case C-394/96

[3] Case C- 32/93

[4] EDA0714

[5] [2005] IRLR 258

[6] [2003] I.R.L.R. 322