ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00003928

Complaint(s)/Dispute(s) for Resolution: A Worker V A Fast Food Restaurant.

Date of Adjudication Hearing: 14/12/2016

Workplace Relations Commission Adjudication Officer: Peter Healy

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 Section 79 of the Employment Equality Act, 1998, following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

Complainant’s Submission and Presentation:

The complainant was employed in February 2015 as an operative in a Fast food Chain that has three locations. Her job included all the duties associated with the operation of a fast food establishment, from preparation of food, cleaning the premises and serving customers. The complainant submits that her duties included some elements of manual handling that were very physically demanding. Specifically the Complainant submits that she was required to lift heavy items of stock such as large frozen blocks of fish.

The complainant submits that she was physically assaulted by one of the business owners in early 2015 when she held the complainant by the hand and hit her approximately seven times. This incident occurred in front of a number of customers of the business. The Complainant was extremely hurt and upset by this incident.

In October 2015 the complainant informed her Manager (Manager A) that she was pregnant. The complainant states that she had a good working relations ship with Manager A and worked in a location outside of the city centre. However on one occasion it is submitted that Manager A told the complainant to "hurry up and have your baby”. The complainant submits that the respondent transferred her to their city centre location to work late shifts as a reaction to the news of her pregnancy. The complainant submits that this was a very unwelcome development as the shifts were more unsociable and she did not wish to work in the city centre as it was a very unpleasant location to work in due to the frequent abuse from patrons under the influence of alcohol.

The complainant experienced medical issues associated with her pregnancy towards the end of 2015. Specifically she submits that pelvis pain made it impossible for her to lift stock and she had Health and Safety concerns regarding the physical environment, specifically icy floor surfaces.

Incident leading to end of employment relationship.

On the 10^th February 2016, the complainant was working on a late rota with one other operative at the city centre location. It is agreed that a vital part of preparation for the next day’s business is the unfreezing of large frozen blocks of fish. The complainant submits that she was unable to remove the items from the freezer due to their weight and size and that she was dependant on the other operative to do so. The complainant submits that there was a dispute with the other operative regarding whose responsibility it was to carry out such manual work, resulting in a delay of a number of hours before the stock was prepared in the required manner. This resulted in food not being available for the next day operation of the restaurant and the loss of considerable revenue. The complaint submits that she texted manager A at 12.15 that night to advise her of the situation.

The following day the complaint received an irate call from the owner manager of the business looking for an explanation. The complainant submits that later that day the complaint received a call from manager A on behalf of business owner and suspended from work and told her to "think about what you have done". The complainant submits that she was suspended for a week and made to work her final shift without pay. The complainant submits that this was extremely distressing for her as her job was her only means of support as a single mother.      

Shortly afterwards the complaint attended her doctor and gave an account of the above events.   The complaint also contacted her solicitor and a complaint was lodged with the WRC on the 4th March. The Complainant submits that she was pregnant and was suspended for not carrying out heavy lifting duties which were unsuitable and unsafe for her. The complaint submits that these circumstances amount to constructive dismissal.

Respondent’s Submission and Presentation:

A representative (Manager A) for the respondent attended the hearing of this complaint. At the outset of the hearing that representative claimed that she though that the scheduled hearing was in fact to be mediation. After adjourning briefly to consider I decided that I had no alternative but to proceed with the hearing as the respondent was on full notice. The representative acknowledged receipt of two items of correspondence describing the particulars of the hearing and no exceptional circumstances were put forward to allow an adjournment. In addition the representative was the primary witness and was responsible for dealing with the complainant in regards to all the relevant aspects of the complaint.

Respondent’s evidence at hearing

The chronology of the complainant’s employment, her duties and the location of her work are not in dispute up to the 10th February 2016. It is agreed that respondent transferred the complainant to their city centre location to work late shifts as a reaction to the news of her pregnancy

The respondent denies all aspects of the complaint. Manager A denies that any discriminatory remarks were every made regarding the complainants pregnancy. Manager A submitted at the hearing that she thought she had had an excellent working relationship with the complainant with a high degree of personal trust regarding intimate details of the pregnancy. No formal risk assessment was carried out when the complainant informed the respondent of her pregnancy however Manager A submits that she had a lot of experience dealing with pregnant employees and that it was made agreed that the complainant should avoid any heavy lifting.

The respondent denies that the complainant was told to come in and work a shift without pay or that any sanction had been given to the complainant following events of the 10th February 2016.

Decision:

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

Section 79(6) of the Employment Equality Act, 1998 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.

Issues for Decision:

The issue for decision by me is whether or not the complainant was treated in a discriminatory manner regarding her conditions of employment and dismissed by the respondent, in circumstances amounting to discrimination, on grounds of gender, in terms of section 6 of the Acts and contrary to section 8 of the Acts. In reaching my decision I have taken into consideration all of the submissions, oral and written, made to me by the parties as well as the evidence given by the witnesses at the hearing.

Section 85A of the Employment Equality Acts 1998 and 2004 sets out the burden of proof which applies to claims of discrimination. It requires the complainant to establish, in the first instance, facts upon which she can rely in asserting the she suffered discriminatory treatment. It is only when those facts have been established and are regarded by an Equality Officer as sufficient to raise an inference of discrimination that the onus shifts to the respondent to rebut the inference of discrimination raised.

In Melbury Developments v Arturs Valpetters [1] the Labour Court, whilst examining the circumstances in which the probative burden of proof operates stated that a complainant "must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn". It added that "the burden of establishing the primary facts lay fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule”. That Court more recently extended this analysis when it affirmed the approach adopted by this Tribunal in Businkas v Eupat Ltd [2]that one of the facts which a complainant must establish is that there was a difference in treatment between him/her and another person who does not possess the relevant protected characteristic, (see Glasgow City Council v Zafar [1998] 2 All ER 953)

The entire period of pregnancy and maternity leave constitutes a special protected period as outlined in the European Court of Justice decisions in Webb v EMO Air Cargo (UK) Ltd [1994] ECR 1-3567, Brown v Rentokil Ltd[1998] ECR 1-04185 and Dekker v Stichting Vormingscentrum [1990] ECR 1-3941. Furthermore, it is settled law that where discriminatory treatment takes place during that special protected period, it raises a prima facie case of discrimination on the gender ground.

In the instant case, the parties agree on the timeline of events and it is accepted that the complainant was pregnant and that the respondent was aware of that pregnancy. However, the issue for consideration by me is whether the complainant was subjected to discrimination by the respondent, specifically if she was treated in a manner by the respondent that gave her no alternative but to consider herself dismissed. I have not taken into account incidents that occurred before the reporting of the pregnancy.

Movement of the complainant to city centre location.

I find that this action by the employer was entirely discriminatory. There was no risk assessment and instead the complainant was told not to lift heavy items. The respondent gave direct evidence that they moved the pregnant complainant from the suburban location to the city centre location because it was less busy and because in the suburban location “everyone had to pull their weight” In reality what this meant was that the pregnant employee was deliberately placed in a location and shift viewed by all employees as the least desirable, i.e. dealing with a large numbers of intoxicated patrons late at night in a city centre location. There were also less staff that might help the complainant with manual duties. In the absence of any formal risk assessment I find the remark that “everyone had to pull their weight” to be inherently discriminatory and an indicator that no effort was made to keep the complainant away form risks in the workplace that could harm her pregnancy.

Incident that led to end of employment relationship.

In this case the complainant asserts that she was unable to return to employment due to events that occurred on and after the 10th February 2016. I accept the account put forward by the complainant of the events that occurred on that night.  Specifically there was a dispute between two junior members of staff about lifting heavy items, resulting in a delay in removing frozen stock from the freezer. The respondent agrees that the complaint should not lift such items. The complainant was therefor unable to take actions, due to her pregnancy, that could have saved her from the most serious reactions of her employer.

Based entirely on the oral account given by manager A at the hearing of this complaint I find the following is the reaction of the respondent to those events. Early the day of the 11^th, the cook discovers that the required food stuffs are frozen and that the restaurant will be unable to open on the busiest day of the year.   The owner manager is informed and he calls the complainant directly at home to complain. Some time later Manger A calls the complainant and full blame is placed on the complainant for loss of a full day’s operation of the resturant. The complainant could have been in no doubt at this point that her employer and owner personally considered her to be a liability.

From these facts alone it is clear that the respondent has failed to carry out a risk assemnet and placed the complainant in a position were the most significant pressure was placed on her to carry out tasks which were a risk to her pregnancy. The complainant was correct not to return to such a work environment. Given the treatment of the complainant up to this point I have no difficulty in accepting her full account in regards to working a shift without pay and being suspended which although were probable said in anger were real to the complainant. In addition manager A’s account of events was not consistent. The employer has at no time demonstrated any form of fair procedures.

At the hearing of this complaint the complainant gave a detailed account of her personal circumstances and emotional stress that loss of employment caused her as a pregnant single mother. I accept her account and find the effects of the discrimination to be most serious and an example of the most unfair treatment of a person in a vulnerable situation.

Decision:

I have concluded my investigation. Based on all of the foregoing, I find, pursuant to Section 79(6) of the Act, that

(i) the respondent has discriminatorily dismissed the complainant on the ground of gender

(ii) the respondent has discriminated against the complaint in regards to her conditions of employment on the ground of gender.

Therefore, I find for the complainant.

I hereby order, that the respondent pay the complainant the sum of €24,000 in compensation for the effects of the discrimination.  This figure represents compensation for infringement of her rights under employment equality legislation in relation to discrimination and does not include any element relating to remuneration and is therefore not taxable.

Dated:   26 January 2017

[1] EDA 0917

[2] Arturas Businkas v Eupat Ltd (In Liquidation) EDA103