ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00007060

Parties:

Complaint(s):

Date of Adjudication Hearing: 14/07/2017

Procedure:

In accordance with Section 79 of the Employment Equality Acts, 1998 - 2015, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Background:

The Complainant is employed as a Food and Beverages Assistant where at the time of the complaint she was paid €9.25 per hour for a minimum 24-hour week.

She commenced her employment in March 2016 and has raised a complaint that contrary to the Employment Equality Act 1998-2015, as amended, that she was discriminated on the ground of her pregnancy. The Respondent operates a hotel.

Summary of Complainant’s Case:

The Complainant was employed as a Food and Beverages Assistant in the Respondent’s café. Her initial role involved working on the tills, making coffees, serving food and taking orders.

In the first week of June 2016, she informed her immediate boss that she was pregnant. The Complainant maintained that her immediate boss informed the Operations Manager who subsequently approached the Complainant saying he wished to discuss her “problem” with her. The Complainant maintained that she was very upset at her pregnancy being described as a problem by the Operations Manager.

The Complainant submitted that on the 10^th August, 2016 the Operations Manager filled out a Risk Assessment for Pregnant Employees and where the Complainant maintained that the work assessed was her café duties which she was performing at the time. She noted that no corrective actions were deemed necessary for her in the risk assessment report, and she was simply advised to ensure that her breaks were taken. A reassessment date to review the Risk Assessment was listed for the 15^th October 2016 but no reassessment ever took place. The Complainant also submitted that training in manual handling was that was scheduled for August 2016 was never carried out.

After 10^th August 2016, over two months after advising the Respondent of her pregnancy, the Complainant maintained that she was taken from her role in the Cafe to a role of setting up tables for weddings. The Complainant maintained that she was moved to the wedding venue within a few weeks of notifying the company of her pregnancy. She maintained that the wedding venue duties involved much more reaching, moving tables and chairs, ironing cloths across the tables which involved more stretching, and using an industrial hoover to clean the staircase leading down to the function room. The Complainant said she did not work as a waitress during the wedding banquets and submitted that no training for manual lifting was provided. She also submitted that she had not be asked to do this work prior to notifying the respondent of being pregnant. As her pregnancy progressed the Complainant asked to be returned to her role in the café, or to be give a job with lighter duties which did not involve heavy lifting, but these requests were refused.

The Complainant submitted that she was subsequently injured whilst working on a wedding set up, and when she was dragging tables and chairs which led to the injury. An incident report was completed by the manager responsible for the wedding set ups. The Complainant was advised to go home by a floor manager whom she said appeared annoyed that she had injured herself, and she alleged he stated to her “you’re no use to me being here.” When she went home she felt unwell and went to the maternity hospital where she was kept in for observations for three days.

That evening she contacted the Operations Manager and informed him she would be unable to attend work on the following two days due to being kept in hospital. She contended that she was told by the Operations Manager that she would have to go on sick leave early. She maintains that the Operations Manager informed her she would not be able to return to work for health and safety grounds.

The Complainant protested that she would be fit to return to work in a few days, and on being released from hospital the Complainant attempted to arrange a meeting with the Operations Manager with view to returning to work and to seek payment for outstanding holiday hours. However, the Operations Manager cancelled one meeting that was planned for the 15^th September 2016 and the Complainant could not make the rearranged meeting on the following day due to a hospital appointment. The Complainant tried to rearrange a meeting again by text on the 17^th September 2016 but the Operations Manager replied that he was away for a few days. She requested a further meeting subsequently but did not hear back from the Operations Manager.

The Complainant submitted that before she was told she could not return to work due to health and safety reasons related to her pregnancy, she was never asked to see a doctor, nor was she ever offered alternative or lighter duties. She contended that the Respondent failed to carry out any actual assessment of her working conditions and the risk they might pose to her health. Furthermore, she submitted that she did not have a contract of employment provided to her, and there was no grievance procedure in place for her to progress her concerns.

She further submitted that the Respondent is one of the country’s leading wedding venues, where the Respondent operates a bar and a restaurant and oyster bar which can hold 100 people, a function room that can cater for 180 guests, 40 bedrooms, a number of houses on the grounds, three apartments, a cafe, and a separate cookery school. In these circumstances, it was submitted by the Complainant that the Respondent could have reasonably found lighter duties for the Complainant when she was pregnant.

The Complainant submitted that the employer had a duty to her to allow her to carry on working during her pregnancy in a safe manner and to make reasonable accommodation for her to do so. She maintained that under the Safety, Health and Welfare at Work (Pregnant Employees) Regulations an employer has a duty to carry out a risk assessment and where if a risk is established the employer must put in place measures to remove the risk. On that basis, the Complainant contended that no proper health and safety assessment was carried out in order to ensure that the Complainant could carry on working in a safe manner in the hotel. She maintained that the assessment that was carried out related to work in the café, but no assessment was carried out relating to the work she was doing in the wedding venue and the risks that might be encountered in that position. Accordingly, she argued that no attempt was made to remove any risk from her employment or to adjust her working conditions to allow her to continue working safely through her pregnancy. Furthermore, no suitable alternative work was sought or offered to her.

The Complainant contended that in reality once the Respondent discovered that she was pregnant, far from eliminating any risks posed to her, it increased the risks by moving her to the wedding venue and imposing far heavier duties upon her. She then contended that when she hurt herself and subsequently went to hospital that her employment was summarily suspended. It was therefore submitted that the Respondent simply decided it would be easier to remove the Complainant.

The Complainant maintained that by the Respondent suspending her without pay she experienced great stress and financial hardship. She was not paid for the first 21 days of that leave, and where she was left short in terms of wages and holiday pay. She did not receive any money until December 2016, and never received the 21 days health and safety leave she was entitled to under the Regulations.

The Complainant therefore submitted that under S6(2A) of the Employment Equality Acts 1988, where a woman is treated less favourably due to her pregnancy, the Respondent’s actions constituted unlawful direct discrimination on grounds of gender. She maintained that in her case her employment was unlawfully suspended from September 2016.

Following her return to work in March 2017, after giving birth to a daughter, the Complainant as a lone parent asked the Respondent if it was possible to work part time and it was agreed that she could work 19 hours per week. She also asked for and was given a contract of employment on this occasion. However, she has submitted that since her return, and since it became known that the Complainant had made a complaint to the WRC, the Complainant has felt ostracised at work and penalised for making a claim. Although she signed a contract for 19 hours work per week, she maintains that her hours have been reduced continuously. She has submitted that this has had a very serious impact on her financial circumstances and has caused her much stress. Referring to ECJ case of Von Colson & Kamann v Land Ordrhein-Westfalen the Complainant submitted that where discrimination on the gender ground is found, the Adjudicator is not just obliged to consider the manner and effects of the discrimination, but must also look at making an example of an employer and award damages that are effective, proportionate an dissuasive.

Summary of Respondent’s Case:

The Respondent disputed the claim. The Respondent denied that it had discriminated the Complainant on the gender-pregnancy ground. The Respondent maintained that the Complainant had not been dismissed nor had she resigned her employment and she continues to work for the Respondent and has done so without complaint since her return to work in February 2017.

The Respondent also objected to the Complainant’s submission regarding penalisation being heard on the basis the complaint had not been made in the original complaint form, nor had the Complainant raised this Complainant at any stage until she made her written submission to the Adjudication hearing. Notwithstanding, the Respondent denied any act of victimisation or penalisation as alleged by the Complainant.

The Respondent denied that its Operations Manager would have referred to the Complainant’s pregnancy as a problem. The Respondent further confirmed that it conducted a risk assessment in relation to the Complainant’s work in light of her pregnancy and where this risk assessment was a generic risk assessment for the type work conducted at the hotel. It further submitted that it was common practice for everybody who is employed as a food and beverage assistant to move roles and that was the basis for moving the Complainant where the Respondent argued the move was not due to her pregnancy.

The Respondent advised that an incident occurred on 28^th August 2016 but the Complainant reported an injury that required medical attention. It maintained this incident occurred in the course of the Complainant’s normal duties and where these duties had been assessed in the risk assessment. However, in light of the fitness of the Complainant following the incident the Respondent advised it had legitimate concerns for the Complainant’s fitness to return to work. It maintained that the Complainant did not provide medical certification of her full fitness nor did she suggest precautions for a reasonable accommodation or that she had a disability which may have affected her fitness to work. The Respondent maintained that if such a disability had existed and where reasonable accommodation could not be provided it would have been appropriate to put the Complainant on health and safety leave. In effect, the Respondent argued that it had no option but to refuse to allow the Complainant to return to work unless it was satisfied that she was fully fit and did not present a risk to herself, her baby, her colleagues, or patrons of the hotel. The Respondent maintained in the absence of the Complainant advising the Respondent of her fitness to work that it was obliged to provide her with leave until after her pregnancy.

The Respondent further acknowledged that the Complainant had sought a meeting with its Operations Manager during September 2016 but there were difficulties in scheduling this meeting. It maintained that the Complainant could have persisted herself to make further contact with the Operations Manager when he did not get back to her, and further contended that she could have written or emailed the Respondent but that she did not do so. The Respondent advised that the Complainant did not get back and as such any further concerns with regard to her medical fitness at work did not arise since they she was on maternity leave. The Respondent understood that the Complainant proceeded to have her baby in December 2016.

The Respondent submitted that the Complainant sought to return to work in January 2017 after having her baby and where the Respondent engaged with the Complainant and new terms of employment were agreed that provided the Complainant with work of up to 19 hours per week. In addition, it argued that the Complainant had sought to be transferred the Respondent’s premises in Dublin to reduce travel distance to her work but this request was declined as there were no vacancies at its Dublin branch. The Complainant maintained that the hours agreed in the new contract were not to not exceed 19 hours per week and where it also facilitated the Complainant in not having to work weekends as she was not available for weekend work. The Respondent submitted that since it agreed a revised contact with the Complainant in January 2017 and until her return to work no mention was made by the Complainant of her medical fitness, nor has any complaint been made regarding her duties or any other aspect of employment. The Respondent maintained that the first it became aware of her complaint of victimisation/penalisation was after the complaint was submitted to the WRC.

The Respondent submitted that any loss of earnings by the Complainant is not attributable to any act or default on its part as the hours were reduced by request of the Complaint upon her return, and where it gives her the hours it can during the week. The Respondent maintained that the Complainant continues to work her contract terms, and has had no future losses.

In cross-examination, the Respondent acknowledged that its risk assessment included the non-lifting of chairs, but argued that in the setting up of a wedding function there were facilities to assist with the movement of chairs without having to lift them. It also maintained that following the hospitalisation of the Complainant that it did not conduct any further medical assessment of the Complainant’s fitness to return to work. It further argued that it can only formally grant health and safety leave after a proper application was made, and as the Complainant did not make such an application, nor did she submit any medical certificates or assessments regarding any need for reasonable accommodation, it accepted she was on her maternity leave from the time of her hospitalisation.

With regard to comments made about the Complainant’s pregnancy being a problem, the Operations Manager in his evidence could not recall making such a comment and advised that as he was dealing with over 60 people, and as a family man, it would be unlike him to make such a comment. However, he said that he could not specifically remember what he said to the Complainant at the time, one way or another.

The Operations Manager also stated that the Complainant probably did ask to return to her role to the café, however the Respondent maintained that the trays would be too heavy to lift in the café and in part for that reason, in light of a pregnancy situation, it decided it was not a suitable role for her.

The Respondent also acknowledged that following the Complainant’s hospitalisation that it did wish to discuss the probability of the Complainant not being allowed to return to work as a consequence of her illness/injury, and where it was intended to meet with her. However, the communication “died after a few text messages from the Complainant” on 15 September 2016.

The Operations Manager further advised that the hotel is a seven-day operation, and his role as Operations Manager had doubled at that time, and where he was bogged down with operational matters.   He argued that the Complainant could have contacted a manager or other direct managers who would always have been available to meet with her.

The Respondent acknowledged that in hindsight identifying a job with lighter duties would have required some discussion with the Complainant, and a medical assessment/advice/opinion. The Respondent maintained that it had previously facilitated the Complainant on a number of occasions when she was sick, but on this occasion, she had stopped the communication and therefore matters were not progressed. Consequently, the issues of light duties had not been progressed in the absence of any medical letter from the Complainant, and where the Respondent maintained that it had a duty of care where an employee was not fit or safe for work. The Respondent maintained that as no medical certificates and been submitted it was not in a position to progress matters with regard to the Complainant’s return to work while she was pregnant.

The Respondent advised that following the accident and the subsequent hospitalisation of the Complainant due to an illness it had asked her to provide a certificate but she failed to do so, and due to the Complainant’s failure to provide a medical certificate it was not in a position to take her back at that time.

Findings and Conclusions:

With reference to the Employment Equality Act, 1998, (the Act), as amended Section 6(1)(a) describes that 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,

Section 6(2) defines discrimination as between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are [inter alia]—(a) that one is a woman and the other is a man (in this Act referred to as “the gender ground”)… and further states in Section 6(2A) Without prejudice to the generality of subsections (1) and (2), discrimination on the gender ground shall be taken to occur where, on a ground related to her pregnancy or maternity leave, a woman employee is treated, contrary to any statutory requirement, less favourably than another employee is, has been or would be treated.

Section 8 (1)(b) of the Act makes it an offence for an employer to discriminate in relation to the conditions of employment, and where Section 8(4) further states that an employer shall not, in relation to employees or employment (a) have rules or instructions which would result in discrimination against an employee or class of employees in relation to [inter alia] conditions of employment or (b) otherwise apply or operate a practice which results or would be likely to result in any such discrimination.

The Complainant has submitted that she was discriminated against by virtue of the fact she was pregnant, and that her employer treated her less favourably in that she was removed to a different role after she informed her manager that she was pregnant, and when she subsequently became ill she was not allowed to return to work until after her pregnancy.

Based on the evidence submitted to the hearing, it is clear that the Complainant was moved to different work after she had reported she was pregnant. It is also clear that this work involved duties which required more physical activity, in that it required setting up for wedding functions, and where the Complainant was asked to complete this work without a thorough and suitable health and safety risk assessment.

Whilst it acknowledged that the role of food and beverage assistance employed by the Respondent may require movement around the different roles within the hotel, and where such roles reasonably include assisting the setting up of wedding functions, it is significant that it was only after the Complainant advised that she was pregnant that she was moved, and there was no indication to her before that date that she was due to be rotated to other duties.

The Complainant has maintained that comments were made that inferred her pregnancy was a problem, and whilst the Operations Manager who was alleged of making this comment has advised it would be unlike him say such things, he could not recall specifically whether he did or did not say this. I am therefore satisfied that on the balance of probability remarks were made to the Complainant by the Operations Manager that could reasonably be regarded as sounding, in the least, to be negative towards the fact she was pregnant.

I therefore find that the change in job of the Complainant to a different role occurred shortly after she had advised the Respondent of her pregnancy, and where prior to informing her employer of her pregnancy no indication had been given that such a move was being considered. The only conclusion that can be drawn is that the Complainant was moved because she was pregnant and as such she was discriminated in her conditions of employment by virtue of her pregnancy, and the negative response whether intended or otherwise she received from the Operations Manager when she notified him of her pregnancy.

With regard to the treatment of the Complainant after she was hospitalised, the evidence supports that after the Complainant had been injured at work and subsequently went sick due to a pregnancy related issue that she was not afforded theopportunity to return to work until after she had given birth. The Respondent in its response maintains the reason for this was it had concerns with regard to the Complainant’s fitness to work, and its obligations to have regard for her health and safety, and the health and safety of others including its patrons.

The evidence supports that the Complainant did attempt to return to work after a short illness in September 2016. She did contact the Operations Manager both by phone and text on a number of occasions to seek a return to work, but the Respondent failed to meet with the Complainant. I find that the Respondent also failed to clearly provide the Complainant with information on its procedures and requirements regarding her return to work, or how it was proposing to cater for her pregnancy.

With regard to the Respondent’s obligations under the Safety, Health and Welfare at Work regulations [Safety, Health and Welfare at Work (General Application) Regulations 2007 (S.I. No. 299 of 2007), as amended by the Safety, Health and Welfare at Work (General Application) (Amendment No 2) Regulations 2016 (S.I No 70 of 2016) relating to pregnant, post-natal and breastfeeding employees], it is acknowledged pregnancy is a part of normal everyday life; it is not an illness. Many women work during pregnancy. Because there are some hazards in the workplace which may affect either the health of the woman or her developing child, an employer has specific responsibilities as set out in the Regulations. The Regulations apply when an employee informs her employer that she is pregnant and provides an appropriate medical certificate of her condition. She may choose to inform her employer through her supervisor, or by having her doctor directly contact the employer. As the earliest stages of pregnancy are the most critical ones for the developing child, it is in the employee’s interest to let her employer know she is pregnant as soon as possible.

I am satisfied that Complainant did notify her employer of her pregnancy. Once the employer is aware the employer is obliged under Regulation 149 to without prejudice to section 19 of the Act,…(a) assess any risk to the safety or health of employees and any possible effect on the pregnancy of…employees, resulting from any activity at that employer’s place of work likely to involve a risk of exposure to any … working condition (such as handling a load or movement and postures which are abrupt or severe or give rise to excessive fatigue) … and, for that purpose, determine the—(i) nature, (ii) degree and (iii) duration of any employee’s exposure to any agent, process or working condition;… to take the preventive and protective measures necessary to ensure the safety and health of such employees and avoid any possible effect on such pregnancy.

Where the risk assessment identifies a risk to the safety or health of the pregnant employee, the employer must as a first step assess if there are any practical ways the risk can be avoided by either adjusting the working conditions and/or hours of work. If this does not remove the risk the employer must, as a second step, provide suitable alternative work. If that is not possible, as a third step the employer should assist the employee in receiving health and safety leave under Section 18 of the Maternity Protection Act 1994. It should be noted that third step applies where the employer, having undertaken the risk assessment, identifies occupational risks which arise for normal pregnancies and which he or she cannot reasonably control by steps 1 or 2 outlined above.

Whilst I acknowledge the Respondent did complete risk assessment when it was notified of the Complainant’s pregnancy, a review of this assessment indicates it was for work in the café area, waiting tables, holding trays, operation of till’s, and the serving of food. It does not refer to the preparation of wedding functions, moving of chairs, and where the handling of loads is noted in the assessment as not being applicable. The setting up of wedding functions does require the movement and unstacking of chairs, amongst other stretching tasks not originally assessed. Therefore, I am not satisfied Respondent conducted a sufficiently focussed risk assessment as it was obliged to do under the Regulations when it moved the Complainant to different duties, and when it became aware she had experienced an injury in work.

Furthermore, the Respondent has argued that following the hospitalisation of the Complainant it was for her to furnish the Respondent with medical certification of her fitness to return to work, and to advise the Respondent what reasonable accommodation the Complainant required to enable her to return to work during her pregnancy. However, no evidence was presented that the Complainant was advised of this requirement. Indeed, such a requirement by the Respondent does not appear to be within the spirit of the aforementioned regulations.   The Respondent has also maintained that in the absence of receiving any such information from the Complainant it assumed she was not returning to work and had taken her maternity leave.   Such action appears contrary to the steps set out in the Regulations where the employer is obliged to assess the work (which as stated I find it has fallen short particularly after it decided to redeploy the Complainant), and if that does not resolve the matter it must then seek suitable alternative work. In light of the variety of locations it operates I am satisfied it could have found alternative work for the Complainant to that of the setting up wedding functions, and where her former role in the café would have been suitable as that is the role which was assessed and found to be safe in the first instance.

I also find that, despite the Respondent’s stated position, the evidence supports that the Complainant did attempt to make contact with the Respondent after her discharge from hospital, that a meeting was initially set up but cancelled by the Respondent, that a rescheduled meeting did not suit the Complainant due to a medical appointment, and when she subsequently sought another meeting the Respondent failed to follow this up. In the absence of such a meeting and the failure of the Respondent to provide the Complainant with information on any policy/procedure she was required to follow, the Complainant understood that she was not allowed return to work due to health and safety reasons, and that she had therefore been granted health and safety leave. She subsequently continued with a maternity leave until her child was born in December 2016, and when she returned for work in March 2017.

I therefore find that the Complainant was also discriminated by the Respondent on a grounds related to her pregnancy in that she was treated, contrary to the employers statutory requirements to properly adhere to the steps set out in SI S.I. No. 299 of 2007 as amended, less favourably than another employee is, has been or would be treated in that her return to work after her hospitalisation would likely have been permitted by the Respondent without the barriers being put in her place had she not been pregnant.

It is noted that before the Complainant’s return to work in March 2017 she engaged with the Respondent where she was issued with a new contract of employment that provided her with a shorter working week as she had requested, and where she had asked not to work weekends which was also facilitated.

There was no evidence presented by the Complainant with regard to how she was treated less favourably to other employees with regard to her working hours upon her return to work other than stating that she did not receive a full 19 hours of work. Her contract appears to indicate a maximum of 19 hours per week and that she was not in a position to work weekends. It appears that the Respondent facilitated this request, and provide the Complainant with a shorter working week, and no weekend work to facilitate her circumstances. It is therefore reasonable to understand that the amount of hours available, in light of the nature of work at the hotel, may not always allow the Respondent provide the Complainant with a fixed 19 hours per week.

Decision:

Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.

I have found that the Respondent discriminated against the Complainant on the grounds of her pregnancy contrary to Section 6(2) and Section 8 of the Employment Equality Acts, 1998 – 2015 in that the Respondent unreasonably changed the Complainant’s work duties after being informed of her pregnancy.

I have also found that the Respondent discriminated against the Complainant in failing to afford her with the opportunity to return to work after a short illness while she was pregnant, and contrary to Section of the Employment Equality Acts, 1998 – 2015 where it failed in its statutory requirements under Safety, Health and Welfare at Work (General Application) Regulations 2007 (S.I. No. 299 of 2007), as amended by the Safety, Health and Welfare at Work (General Application) (Amendment No 2) Regulations 2016 (S.I No 70 of 2016) by not properly assessing the risks to her health and safety after her illness, and by so doing did not afford her the opportunity to return to work after her illness, or benefit from a period of health and safety leave.

Furthermore, I must also consider the employer’s defence which submitted in effect it was the responsibility of the Complainant to prove to the Respondent what reasonable accommodation she required before she could return to work. I find this defence is remarkable, and demonstrates a marked lack of awareness of its obvious responsibilities in relation to the protections afforded to a pregnant employee. In effect, the Respondent failed to meet with the Complainant to consider how she could return to work after her illness. As a consequence, the Complainant experienced a loss of earnings for some three months. If she had not been pregnant it is highly unlikely that she would have been treated in this way.

The Complainant experienced discrimination across a number of her conditions of employment, and where I have no doubt that such discrimination would not have occurred had her employer not been made aware of her pregnancy. Under these circumstances I am required to consider by way of compensation both the manner and effects of the discrimination, as well as awarding compensation that is proportionate and persuasive, particularly in light of the decisions made by the Respondent and the defence it has made which includes it was the Complainant who was at fault for not providing it with sufficient information to allow her return to work.

Taking all matters into consideration, and having decided upon the seriousness of discrimination that occurred, I award the Complainant by way of compensation the sum of €15,000. This figure represents compensation for infringement of her rights under equality legislation in relation to discrimination.

Dated:   11 December 2017

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