EMPLOYMENT EQUALITY ACTS
DECISION NO.: DEC-E2017-079
PARTIES:
A MOBILE PHONE TECHNICAN
AND
A MOBILE PHONE REPAIR SHOP
File Reference: et-152710-ee-15
Date of Issue: 17 October 2017
HEADNOTES: Equality Acts, gender, family status, promotion, conditions of employment, victimisation
1.0 Dispute
1.1 This dispute refers to a claim by the complainant that she was discriminated against by the respondent on the grounds of gender and family status contrary to section 6 of the Employment Equality Acts (hereinafter referred to as the Acts in terms of promotion, conditions of employment and victimisation.
1.2 The Complainant referred a complaint under the Employment Equality Acts to the Director of the Equality Tribunal on 18th March 2016. In accordance with her powers under section 75 of the Employment Equality Acts, the Director General delegated the case on 17TH February 2017 to me, Louise Boyle, 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. As required by section 79(1) of the Acts and, as part of my investigation I proceeded to hearing on 20th February 2017. The respondent did not attend the hearing.
1.3 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.
2. Summary of the complainant’s case
2.1 The complainant alleged she was discriminated against and victimised by the respondent on the grounds of family status and gender by reason of her pregnancy in relation to conditions of employment and promotion in terms of Section 6(2)(a) and (c) of the Employment Equality Act 1998-2001 and contrary to section 8 of those Acts and victimised by the Respondent contrary to section 74(2) of the 1998-2001.
2.2 The complainant is married with children and started employment with the respondent on 2nd April 2010 as a Mobile Phone Technician and Logistics Supervisor on a salary of €24,000 per annum. She worked full time until September 2013 when it was mutually agreed with the respondent that she would work 3 days a week with her salary pro-rated.
2.3 She returned to work in July 2013 after maternity leave, working 3 days per week until 28th March 2014 when she was placed on temporary lay off and received a form RP9. She was reassured by the respondent that this was a temporary arrangement and in September 2014 she was offered a full time position 10 a.m. to 6 pm. Monday to Friday, repairing laptops, a position which was a promotion and which the complainant accepted.
2.4 She advised the respondent that she was pregnant. She gave evidence that the respondent advised that “there was no point wasting money training you”.
2.5 On 26th September 2014 the respondent told her that he could give her back her old job but she would need to work Friday/Saturday and Sunday and that this probably “wouldn’t suit [her]”. The complainant, however, accepted this position and sent a text message and left a voicemail confirming this on 2nd October 2014.
2.6 The following day the respondent told her there was no longer a job available for her and that she was being made redundant and thereafter refused to return calls. Despite completing and submitting an RP9 on 16th October, delivering it by registered post and despite also having her husband hand deliver it on 24th October 2014; no redundancy was forthcoming and she had to claim for this separately and was successful in her claim.
2.7 The respondent continued to trade and hired a male employee to undertake the duties that the complainant had undertaken.
2.8 She believes that the respondent has since closed down.
2.9 The complainant submitted that the respondent was directly in breach of the principle of equal treatment on the grounds of gender and family status as regards her promotion and working conditions by his rescinding his offers both of a full time position repairing laptops and part-time position working as a Mobile Phone Technician Logistics Supervisor because of the adverse consequences which he anticipated would result from the complainant pregnancy.
2.10 It was claimed that the complainant’s pregnancy and/or family status was also a reason behind the Respondent’s rescission of the second offer of a part-time weekend position working as Mobile Phone Technician. It was submitted that the respondent had not anticipated that the complainant would be willing given her family situation to accept the said offer.
2.11 A large amount of case law was referenced to support the claims that the complainant was discriminated against on the grounds of gender including: Webb v EMO Air Cargo (UK) Ltd ([1994] ECR1-3567),Dekker v Stichting Vormingscentrum Voor Jong Volwassenen ([1990] ECR-13941) and Brown v Rentokil Ltd ([1998] ECR I-0418)5 regarding how the entire period of pregnancy and maternity leave constitutes a special protected period and discriminatory treatment that takes place during that special protected period raises a prima facie case of discrimination on gender grounds. Further cases law referenced included: Gardiner v Mercer Human Resource Consulting [DEC E2006-007 regarding the rights of women who return to work after maternity leave Busch v Klinikum Neustadt GmbH & Co Betriebs-KG ([2003]ECRL1-2041) regarding the rights of pregnant women CNAVTS v Thibault [1998] ECR I-2011 regarding the rights of a pregnant employee to qualify for promotion as well as Von Colson and Kaman v Land Nordrhein-Westfalen ([1984] ECR 1891) regarding sanctions must be “effective proportionate and dissuasive”.
3.0 Summary of the respondent’s case
3.1 The respondent did not provide any submission and did not attend the hearing. Correspondence sent to the respondent was returned.
4.0 Findings
4.1 The issues for decision by me now are, whether or not, the respondent discriminated against the complainant, on grounds of gender, and family status, in terms of Section 6 and contrary to Section 8 of the Employment Equality Acts, 1998 to 2015, in relation to her conditions of employment, promotion and victimisation.
4.2 In reaching my Decision I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence at the Hearing.
4.3 Section 6 (1) of the Employment Equality Act, 1998 provides:
“For the purposes of this Act, discrimination shall be taken to occur where, on any of the grounds in subsection (2) (in this Act referred to as “the discriminatory grounds”) one person is treated less favorably than another is, has been or would be treated.
Section 6 (2) (a) – (i) of the Acts outlines that the Complainant must be treated less favourably on the grounds of gender, marital status, family status, sexual orientation, civil status, religion, age disability, race or a member of the Traveller community for the case to succeed.
4.4 Discrimination
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. If she succeeds in doing so, then, and only then, is it for the respondent to prove the contrary. The Labour Court elaborated on the interpretation of section 85A in Melbury v. Valpeters EDA/0917 where it stated that section 85A: "places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule".
4.5 Gender-Pregnancy and the special protected period
The entire period of pregnancy and maternity leave constitutes a special, protected period as outlined in the Court of Justice of the European Union 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. Brown v Rentokill Ltd, explains why pregnancy is a special protected period:
“Article 2(3) of Directive 76/207 recognises the legitimacy, in terms of the principle of equal treatment, first, of protecting a woman's biological condition during and after pregnancy and, second, of protecting the special relationship between a woman and her child over the period which follows pregnancy and childbirth.”
4.6 Furthermore, the Courts said: -
“It is precisely in view of the harmful effects which the risk of dismissal may have on the physical and mental state of women who are pregnant, have recently given birth or are breastfeeding, including the particularly serious risk that pregnant women may be prompted voluntarily to terminate their pregnancy, that, pursuant to Article 10 of Directive 92/85, the EU legislature provided for special protection for women, by prohibiting dismissal during the period from the beginning of pregnancy to the end of maternity.”
4.7 The Labour Court has found that ‘only the most exceptional circumstances not connected with the condition of pregnancy allow a woman to be dismissed while pregnant” and while this instant case is not in relation to dismissal the same principles can apply in relation to changes in conditions of employment and/or promotional opportunities while pregnant. It is equally well settled law that the dismissal of a pregnant woman (which can obviously only apply to a woman) raises a prima facie case of discrimination on the gender ground. Once such a case has been raised the burden of proof shifts and it is for the respondent employer to prove that the discriminatory dismissal did not take place.’(Intrium Justitia v Kerrie McGarvey Determination No. EDA095)
4.8 Promotion - Gender
The complainant was offered a promotion to a new role of repairing laptops which would require a period of training. The complainant was delighted with this offer and felt that out of courtesy she should advise the respondent that she was pregnant which she was not required to do. The respondent was angry in his tone when he said to her that there was no point wasting money training her and withdrew the offer of promotion.
4.9 In O’Higgins v UCD,EDA 131 and High Court[2013] IEHC 508, the Labour Court give a useful précis of what needs to be considered when looking at whether a promotion competition is tainted with discrimination:
“1. It is for the Complainant to prove the primary facts upon which she relies in seeking to raise an inference of discrimination
2. If the Complainant discharges that burden it remains for the Court to decide if those facts are of sufficient significance to raise the inference contended for.
3. It is not necessary to establish that the conclusion of discrimination is the only or the most likely explanation which can be drawn from the proven facts. It is sufficient if it is within the range of presumptions that can be properly drawn from those facts
4. In cases concerning the filling of a post it is not the role of the Court to substitute its views on the merits of candidates for those of the designated decision makers. Its only role is to ensure that the selection process is not tainted by unlawful discrimination.5. The Court will not normally look behind a decision in relation to appointments unless there is clear evidence of unfairness in the selection process or manifest irrationality in the result
6. A lack of transparency in the selection process combined with an absence of any discernible connection between the assessment or qualifications of candidates and the result of the process can give rise to an inference of discrimination.
7. Where a prima facie case of discrimination is made out and where the Respondent fails to show that the discriminatory ground was anything other than a trivial influence in the impugned decision the complaint will be made out.
8. The court must be alert to the possibility of unconscious or inadvertent discrimination and mere denials of a discriminatory motive, in the absence of independent corroboration, must be approached with caution.”
4.10 While the circumstances of this instant case are that the promotion was not one of a competition as such, as the offer of promotion had already been made, what is clear from the unrebutted evidence was that the offer of promotion was withdrawn following the disclosure of the pregnancy. Thus where a prima facie case of discrimination has been made, as in this instant case, the respondent is required to show that the discriminatory ground was “anything other a trivial influence”. This has not been done and thus the claim succeeds that the complainant was discriminated against by reason of gender in relation to promotion.
4.11Conditions of Employment - Gender
Following the withdrawal of the promotion, the complainant was then offered the role which she had originally had but with amended terms and conditions, including that she would need to work Fridays/Saturdays and Sundays – days she had not worked previously. The complainant stated that she was offered these days because she had informed the respondent that she was pregnant.
4.12 I found the complainant a credible witness and it was unfortunate that the respondent did not attend the hearing to respond to the allegations.
4.13 As per O’Higgins v UCD,EDA 131 and High Court [2013] IEHC“where a prima facie case of discrimination is made out and where the Respondent fails to show that the discriminatory ground was anything other than a trivial influence in the impugned decision the complaint will be made out.”
4.14 It is clear that the changes in the employee’s conditions of employment were implemented as a result of her disclosure of the pregnancy and have not been rebutted by the respondent. Thus the claim succeeds that the complainant was discriminated by reason of gender in relation to the changes that were made to her conditions of employment.
4.15 Victimisation - Gender
The complainant has submitted that she was victimised by the respondent.
4.16 Section 74(2) of the Employment Equality Acts, 1998-2011 defines victimisation as follows:
“(2) For the purposes of this Part victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to—(a) a complaint of discrimination made by the employee to the employer, (b) any proceedings by a complainant,
(c) an employee having represented or otherwise supported a complainant,
(d) the work of an employee having been compared with that of another employee for any of the purposes of this Act or any enactment repealed by this Act,
(e) an employee having been a witness in any proceedings under this Act or the
Equal Status Act 2000 or any such repealed enactment
(f) an employee having opposed by lawful means an act which is unlawful under this Act or the said Act of 2000 or which was unlawful under any such repealed enactment, or
(g) an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs.
4.17 In Tom Barrett v Department of Defence the Labour Court set out the three components which must be present for a claim of victimisation under section 74(2) of the Acts to be made out. It stated that (i) the complainant must have taken action of a type referred to at paragraphs (a)-(g) of section 74(2) – what it terms a protected act, (ii) the complainant must be subjected to adverse treatment by his/her employer and (iii) the adverse treatment must be in reaction to the protected act having been taken by the complainant.
4.18 No evidence was adduced in relation to victimisation such that I determine that the complainant was not victimised by the respondent in relation to these matters.
4.19Family Status Ground - Promotion
Section 6(1) of the 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)(c) of the EEA states that as between two persons, the discriminatory ground of “one has family status and the other does not (in this Act referred to as “the family status ground”),
4.20 At the hearing, and in submissions, the complainant did not press to any significant degree, the assertion of discrimination on the basis of family status.
4.21 The complainant asserted that she was discriminated against in terms of promotion by the withdrawal of the promotion on the basis of family status but no evidence was offered in relation to same and the respondent would have been aware of her family status prior to the offer of promotion.
4.22 Accordingly, I am satisfied that the complainant has not established a prima facie case of discrimination on the ground of family status and thus I find that she was not discriminated against by the respondent in relation to these matters.
4.23Family Status Ground – Conditions of Employment
As mentioned previously, at the hearing, and in submissions, the complainant did not press to any significant degree, the assertion of discrimination on the basis of family status.
4.24 The complainant advised that she had a child already which the respondent was aware of when he offered her the alternative role – which was her original role – but that the changes made to the days that she would be required to work amounted to discrimination on the basis of family status. While reference was made to another male employee who took up employment after she was made redundant, I am satisfied that the complainant has not established a prima facie case of discrimination on the ground of family status and thus I find that she was not discriminated against by the respondent in relation to these matters.
4.25 Victimisation
The complainant has submitted that she was victimised by the respondent.
4.26 Section 74(2) of the Employment Equality Acts, 1998-2011 defines victimisation as follows:
“(2) For the purposes of this Part victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to—(a) a complaint of discrimination made by the employee to the employer,
(b) any proceedings by a complainant,
(c) an employee having represented or otherwise supported a complainant,(d) the work of an employee having been compared with that of another employee for any of the purposes of this Act or any enactment repealed by this Act,
(e) an employee having been a witness in any proceedings under this Act or the Equal Status Act 2000 or any such repealed enactment
(f) an employee having opposed by lawful means an act which is unlawful under this Act or the said Act of 2000 or which was unlawful under any such repealed enactment, or
(g) an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs.
4.27 No evidence was adduced in relation to victimisation such that I determine that the complainant was not victimised by the respondent in relation to these matters.
5.0 Decision
5.1 I have completed my investigation of this complaint and in accordance with section 79(6) of the Employment Equality Acts, 1998-2011 I issue the following decision. I find –
(i) that the respondent did discriminate against the complainant on the gender ground pursuant to section 6(2) of the Acts and contrary to the provisions of section 8 of the Acts in relation to promotion.
(ii) that the respondent did discriminate against the complainant on the gender ground pursuant to section 6(2) of the Acts and contrary to the provisions of section 8 of the Acts in relation to conditions of employment
(iii) that the complainant was not subjected to victimisation by the respondent on gender grounds.
(iv) that the respondent did not discriminate against the complainant on the family status ground pursuant to section 6(2) of the Acts and contrary to the provisions of section 8 of the Acts in relation to her promotion
(v) that the respondent did not discriminate against the complainant on the family status ground pursuant to section 6(2) of the Acts and contrary to the provisions of section 8 of the Acts in relation to her conditions of employment
(vi) that the complainant was not subjected to victimisation by the respondent on the family status grounds.
5.2 In accordance with section 82 of the Acts, I order the respondent to pay the complainant the sum of €25,000 by way of compensation for the distress suffered as a result of the discrimination on the grounds of gender in relation to promotion and conditions of employment. This figure relates to compensation for the effects of the discriminatory treatment and does not include any element relating to remuneration.
5.3 I have exercised my discretion to anonymise this decision
_________________________________
Louise Boyle
Adjudication Officer/Equality Officer
17 October 2017