ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00004017

Complaint for Resolution:

Date of Adjudication Hearing: 25/11/2016

Workplace Relations Commission Adjudication Officer: Pat Brady

Procedure:

In accordance Section 79 of the Employment Equality Act, 1998, 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.

Complainant’s Submission and Presentation:

The complainant says that from the date she told her Employer she was pregnant her hours were cut. She asked twice for a Health and Safety assessment, so that she would know what tasks she could undertake while pregnant.

She was moved from the Delicatessen at her request because of pregnancy related illness and she had some other grievances about why her replacement was on a higher rate of pay.

Nothing was ever done and she was still expected to do heavy orders and work night shifts without security in a dangerous area.

Her doctor advised her not to work nights and weekends and when she told her employer her roster was then cut to only two shifts while another colleague had six.

When she asked her employer for an explanation she was told it was what was easiest available for him.

On the day she gave the employer her medical certification the roster was changed it so that she could work the morning shift on the following Saturday but when arrived for work on she was told by another employee that she was not rostered.

Respondent’s Submission and Presentation:

The respondent says he became aware of the complainant’s pregnancy at the end of March when the complainant said she could no longer work on the Delicatessen counter because of morning sickness. She was immediately transferred to till duty.

When the complainant raised the matter of the Health and Safety assessment the respondent asked her to consult the Citizens Advice Centre to see what exactly was required

Between then and June 27^th she did not raise the matter again and this was followed by medical certification on July 4^th.

The respondent says that he immediately then set about adjusting the roster to ensure that the complainant did not have to undertake the work proscribed by her doctor; heavy and evening work.

He had some difficulty in doing so because of the demands of the business and this resulted in the confusion complained of over the number of shifts but he eventually did so. While not relevant to the case the respondent says that the replacement employee was paid marginally more than the complainant because of her greater experience.

Findings and Conclusions

Any unfavourable treatment of an employee by reason of their pregnancy will be unlawful, direct discrimination.

The complainant raised several issues; the first was the failure of the employer to carry out the Health and Safety Assessment and the second was the decision of the employer to the change in the roster.

In fact, the cutting of the number of shifts and the change on the roster was in response to her health and safety needs and I am at a loss to know how this could be the subject of a complaint if it was in response to her needs.

The transition to the new roster may have been somewhat delayed but I can find no substance under the Employment Equality Act for her complaint in that regard. This can hardly be regarded as unfavourable treatment attributable to the pregnancy; in fact it was to accommodate the recommendations of the complainant’s medical practitioner.

I detected a level of good will from the respondent towards the complainant who is still in their employment but an active obligation falls on an employer to carry out a Health and Safety assessment under Health and Safety legislation and the Maternity Protection Act and this should have been done. In the context of the particular employment it would have been a relatively simple exercise.

But on the two occasions when she sought an accommodation (the move from the delicatessen and to lighter duties) these were reasonably quickly effected. The respondent says that these were the only requests made by the complainant.

On the facts as laid before me I find insufficient evidence in the case to ground a complaint of adverse treatment on the grounds of her pregnancy or discrimination under the Employment Equality Acts.

Decision:

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.

For the reasons set out above I do not uphold complaint CA-00005847-001 and it is dismissed.

Dated:   10/03/2017