EDA186

The Adjudication Officer found that the Respondent did discriminate against the Complainant on grounds of gender in that the Respondent had discriminatorily dismissed the Complainant and had discriminated against her on grounds of gender in regards to her conditions of employment. The Adjudication Officer awarded the Complainant the sum of €24,000 in compensation for the effects of discrimination.

The decision of the Adjudication officer was made on 26^thJanuary 2017.

Background

The Complainant was employed by the Respondent on 11^thFebruary 2015 and following a period of employment in the Parnell Street outlet of the Respondent she was assigned to the Castletroy outlet of the Respondent.

In late 2015 the Complainant learned she was pregnant and shortly thereafter made her pregnancy known to her manager Ms JC. Shortly thereafter the Complainant was assigned to the Respondent’s Parnell St. outlet. On 9^thFebruary 2016 certain product handling events occurred in the Parnell St. premises and the following day the Complainant received two telephone calls from management of the Respondent company. She attended for work that afternoon and completed her shift. The Complainant subsequently obtained a medical certificate and did not attend for work thereafter.

Position of the Respondent

The Respondent submitted that the Complainant, having commenced employment in 2015, worked very satisfactorily and performed well in her role. The Respondent submitted to the Court that the performance of the Complainant was such that the Respondent intended to appoint her to the role of supervisor in a new outlet when that would open.

The Respondent submitted that the Complainant advised her manager in December 2015 that she was pregnant and that she was experiencing physical difficulties as a result of her pregnancy. The Respondent submitted that, following a joint exploration of options available to her to facilitate her remaining in employment while experiencing the physical difficulties of her pregnancy, it was jointly decided that she would move to the Parnell Street outlet of the Respondent company. The Respondent submitted that she was allotted evening shifts principally on Monday, Tuesday and Wednesday as these were the ‘quietest’ shifts in any of the outlets operated by the Respondent and that this shift allocation was jointly decided upon in discussion in December.

The Respondent submitted that on 9^thFebruary 2016 another employee at the Parnell Street outlet, Ms RD, removed from the freezer a nine kilogramme block of frozen fish fillets together with all of the frozen sausages which would be required for Wednesday 10^thFebruary which was ‘Ash Wednesday’ and one of the busiest days in terms of fish sales in Respondent’s business. The Respondent submitted that while Ms RD had removed the frozen fish product from the freezer before her shift concluded it was the function of the Complainant on the evening shift to separate the individual fillets from the frozen block. The Respondent submitted that this separation of fish was essential to the de-frosting process and did not involve any lifting.

The Respondent submitted that on the following morning it was discovered that the fish product had not been separated and that the product was consequently not capable of being used on that day which was the busiest day of the year for the sale of fish in the Respondent business. The Respondent submitted that at that point the business owner, Mr DR, contacted the complainant to ascertain what had occurred but did not rebuke or reprimand the Complainant.

The Respondent submitted that later that day the Complainant’s manager, Ms JC, contacted the Complainant to express her serious concern about the mistake which had occurred on 9^thFebruary and to set out the serious consequences arising from the occurrence for the business of the Respondent. The Respondent submitted that no suspension of the Complainant took place and that she had attended for work that afternoon as scheduled and completed her planned shift. On the following day the Complainant attended at the Castletroy premises and submitted a medical certificate. The Respondent submitted that the Complainant had advised on that date that she would remain on sick leave for the remainder of her pregnancy and maternity leave period.

The Respondent submitted that the Complainant texted her manager , Ms JC, on 16^thFebruary 2016 seeking a letter stating that she was not being paid while out sick and this was supplied to her. The Respondent submitted that the Complainant, in July 2016, contacted the Respondent seeking her P45 and following two conversations the Respondent advised her that a letter would suffice given that the Complainant intended to return to work at some point. On 12^thJuly the Complainant made a complaint to the Workplace Relations Commission and on 19^thJuly the Complainant’s legal representative sought the Complainant’s P45 and this was supplied on the same date.

The Respondent submitted that the Complainant had not been discriminated against on grounds of gender in terms of her assignment to Parnell St. and further submitted that no dismissal of the Complainant had taken place.

Evidence of Mr D R

Mr DR, owner of the Respondent business, stated in direct evidence his view that the Parnell Street premises is not located in an ‘unsavoury area’ and that it is adequately covered by CCTV technology. He stated that the Parnell street premises is primarily a daytime business with very few sales occurring during the evening shift. He stated that on 10^thFebruary 2016 he was advised by another staff member that the fish had not been separated and was frozen and not capable of being sold that day. He stated that he telephoned the Complainant but that he did not reprimand her. He stated in evidence that the purpose of the telephone call was to establish what had occurred and in particular where communication had broken down to the degree that the necessary work was not carried out on the 9^thFebruary. He stated that his primary concern was to set about resolving the issue arising from the unavailability of fish for sale that day and that he commenced that process as soon as the telephone call with the Complainant had concluded.

He stated that he never discussed the suspension of the Complainant with Ms JC. He stated that he had never suspended any member of staff in the business.

Evidence of Ms JC

Ms JC, manager of the Complainant, stated in evidence that the Appellant was an excellent employee of the Respondent. She stated that the Appellant was seen as a person who could become a supervisor with the Respondent.

Ms JC stated that the Complainant was the fifth or sixth person who had become pregnant while in the employ of the Respondent in three years.

She stated in evidence that the Complainant had come to her in a small office in the Castletroy premises in December 2015 and had indicated that she was pregnant, having a difficult pregnancy and that she was worried that she would not be able to remain in work throughout her pregnancy. Ms JC stated that the Complainant was concerned also that she may not be able to remain in employment long enough to qualify for maternity benefit. Ms JC stated that another employee, Ms RD, was present for that engagement with the Complainant.

Ms JC stated that at that meeting a discussion ensued where the matter was jointly discussed and considered. She stated that at the end of that discussion it was decided that the Complainant would be re-assigned to the Parnell St. outlet which was closer to her home. The re-assignment would be to a post which demanded no lifting or physical effort and where very little work would be required of the Complainant. Ms J C stated that the Complainant was to be assigned to the city centre premises to work for three evenings per week from 5.00pm to 11.00pm and with no loss of hours. Ms JC stated that this pattern of shifts was identified because the Parnell St. outlet was very quiet at those times and because the Complainant could sit and take breaks whenever she considered it necessary or appropriate. This pattern contrasted with a pattern generally of two days and one night per week in Castletroy.

Ms JC stated that this assignment had been used to facilitate pregnant staff in the past because of the light nature of the physical work involved and the fact that the outlet was not busy in the evening / night time.

Ms JC stated that there had been no complaint from the Complainant as regards her assignment to the Parnell St. outlet which took effect from 28^thDecember 2015. She submitted in evidence records of text messages between herself and the Complainant including a message from 4^thJanuary 2016 which stated ‘I was just thinkin if u wanna put me on a few days in Parnell instead of all the nights I’ll do them it be perfect for me only if you like’.

She said that she became aware of the issue as regards frozen fish product on the morning of the 10^thFebruary. She said that she telephoned the Complainant to ascertain what had happened but never suspended her nor indicated any form of reprimand or disciplinary action. Ms JC stated that her focus on the day was to establish what had happened and to set about making whatever arrangements were necessary to secure saleable product for the outlets on that day. She stated that this was achieved through a supplier and the matter was concluded at that point.

Ms JC stated in evidence that she had established that the product was removed from the freezer on 9^thFebruary by another member of staff but that the separation of the fish had not taken place.

Ms JC stated that the Complainant worked her shift on the evening of the 10^thFebruary but called in to the Castletroy branch the following day to supply a medical certificate and remained out sick from work thereafter. Ms JC stated that on 16^thFebruary the Appellant sought a letter stating that she was not in receipt of pay while out sick and such a letter was readily supplied to her.

Ms JC stated that the Complainant subsequently contacted the Respondent in July 2016 to seek her P45 in order to secure a medical card. The Complainant advised her at that time of her intention to return to work in due course. She stated that some engagement took place on this topic and ultimately she advised the Complainant that, in light of the fact that she intended to return to work, a letter from the Respondent would satisfy the needs of the Complainant. A letter was subsequently received on 19^thJuly 2015 from the Complainant’s legal adviser seeking a P 45 and it was supplied immediately.

Ms JC stated that she never said “hurry up and have that baby” to the Complainant and she never said to the Complainant that her pregnancy had occurred at the worst time and never said ‘I thought you could have been a supervisor’ in response to being informed the Complainant was pregnant.

Ms JC stated that the Complainant had been identified as suitable for appointment as a supervisor but that the opening of the outlet where this position would arise was delayed for a variety of reasons and had not taken place by the time the Complainant departed the employment on sick leave or for some time afterwards.

Under cross examination Ms JC accepted that posts at the Castletroy outlet required a degree of physical work. She said that she was not qualified in manual handling herself and agreed that no written risk assessment as regards the Complainant’s pregnancy and the work required of her was prepared. Ms JC said that when she contacted the Complainant on 10^thFebruary she had not reprimanded her but had conveyed her view that she was disappointed. She stated that she at no time suspended the Complainant on 10^thFebruary or said anything which could be interpreted by the Complainant as having that meaning.

Ms JC stated in evidence that the Complainant had, in December 2015, raised concerns with her that she might not be able to remain at work throughout her pregnancy because of difficulties she was experiencing with her pregnancy. She said that in discussion with the Complainant the solution of assigning her to the Parnell St. outlet was jointly identified and then acted upon by the Respondent. She stated that the outlet in Parnell St. was not at all busy in the evening and night time and that the assignment of the Complainant to that location assured her that she would be able to deal with any demands of work and she would be assured of maintaining her hours of work. She stated that on two occasions previously pregnant employees had been accommodated in the Parnell St. outlet because of the light duties involved in the location.

Ms JC stated that while she was not fully aware of equality law she was aware of the Respondent’s duty to make every effort to accommodate a pregnant woman such that she could remain in employment. She stated that in her view that had been accomplished in the case of the Complainant by assigning her to the position in the Parnell St.

Evidence of Ms RD

Ms RD stated that she worked with the Respondent on the basis of working for three quarters of her time in Castletroy and a quarter of her time in the Parnell St. outlet. She stated that she was present in Castletroy in the small office with Ms JC when the Complainant discussed her pregnancy with Ms JC in December 2015.

She said that the Complainant outlined her difficult pregnancy and stated that she was concerned that she would not have enough ‘credits’ for maternity benefit with ‘social welfare’ and that she felt she needed more stamps to qualify.

Witness stated that Ms JC and the Complainant discussed various options and that both identified that day shifts in Parnell St. were busy and difficult while the same applied to shifts in Castletroy. She stated that both Ms JC and the Complainant agreed that the evening shift in the Parnell St. outlet was the most suitable given the difficult pregnancy being experienced by the Complainant. The witness stated that there was no dissension between Ms JC and the Complainant as the solution of assignment to an evening shift in the Parnell St. outlet was decided upon.

Ms RD stated that she was working the 10 to 6 shift in the Parnell St. outlet on 9^thFebruary 2016.

She stated that she got a call during her shift from Ms JC to take the fish out of the freezer early. She stated that, by 3.15 pm, she had removed the fish and sausages from the freezer and understood that the Complainant would be separating the fish in due course. She said that she herself had removed the fish by 3.10pm and had not requested the Complainant to do so when she attended for work at 5.00pm.

Ms RD stated that she received a call the following morning from Ms L, another staff member located in the Parnell St. outlet, to say that the fish was not defrosted and was unusable for that day.

Ms RD stated that the Complainant attended for work in the outlet at 5.00pm on 10^thFebruary and appeared to be embarrassed about the incident the previous day. She stated that the Complainant made no mention of suspension during her interactions at the location that evening.

Position of the Complainant.

The Complainant submitted that she learned that she was pregnant in October 2015 and shortly thereafter so advised Ms JC (a manager of the Respondent) in private and confidentially for personal reasons. She submitted that Ms JC then said to her ‘I thought you could have been a supervisor’ and that the news ‘could not have come at a worse time’.

The Complainant submitted that during her pregnancy she was forced to take several sick days and that Ms JC had said ‘hurry up and have that baby’ to her. She said that in addition she had a pelvic issue which caused her to attend for physiotherapy. The complainant submitted that shortly thereafter she was moved to the Parnell St. outlet notwithstanding her having advised Ms JC that she would prefer to stay in the Castletroy branch.

The Complainant stated that the Parnell St. outlet is located in a socially deprived and economically disadvantaged area of the city. She also said that she was rostered from 5.00pm to 11.00pm during which time some of the customers would be under the influence of drugs and alcohol. She submitted that she was required to lock up at night and that she felt vulnerable. The Complainant submitted that the Parnell St. outlet was not busy during her working hours and less staff were employed. She submitted that she had a child and consequently rose early in the morning. She submitted that she was rostered three days a week in the Parnell St. outlet from 5.00pm to 11.00pm which compared with two days per week in Castletroy from 10.00am to 5.00pm and one day from 5.00pm to 12.00 midnight. The Complainant submitted that the customers in Castletroy are generally more agreeable. She submitted that the Castletroy branch was a busy branch and consequently employed more staff who would be available to assist her and had more positions suitable to her personal circumstances.

The Complainant submitted that on 9^thFebruary 2015 she attended for work at 5.00pm. She submitted that she was requested by another member of staff, Ms RD, to take eight boxes of frozen sausages and a separate block of frozen fish from the walk-in freezer and to later separate the frozen fish as they de-frosted. She submitted that she was concerned regarding the weight of the boxes as well as the icy floor. She submitted that she was not trained to separate the frozen fish. She submitted that Ms M, another employee, agreed at the Complainant’s request to remove the product and separate the fish.

She submitted that the following morning she was contacted by Mr DR, owner of the business, who advised her that the fish was unfrozen and unusable that day as a result and that the reason was that the fish had not been separated on the previous day. She advised him that she had asked Ms M to carry out some of the manual tasks because the Complainant was pregnant. She submitted that shortly thereafter Ms JC had called her and told her to ‘take the week off to think about what you have done’. She submitted that Ms JC confirmed to the Complainant that she was being suspended from work although she was required to work her shift that evening.

The Complainant submitted that she turned up for work that evening albeit she was upset and crying. She submitted that she was under a great degree of stress as a result of being suspended and missing her income. She submitted that she secured a medical certificate from her doctor the following day and never returned to work. She submitted that she felt she was an inconvenience to the Respondent as soon as she informed them that she was pregnant. She submitted that she did not want to return to work for the Respondent and after the completion of her suspension she was not requested to return to work.

She submitted that she did ask the Respondent on 16^thFebruary 2016 for a letter for ‘Social Welfare’ confirming that she was not being paid while out sick. She submitted that her ‘lawyers’ told her to be nice and polite when dealing with the Respondent thereafter. She submitted that she subsequently asked Ms JC for a P45 in order to obtain a medical card and that she remained polite.

Evidence of the Complainant

The Complainant stated in evidence that she had worked one week in the Parnell St. outlet on recruitment

She said that Castletroy was a much nicer outlet and that the customers were very nice and professional people. She said that customers in the city centre outlet included drug addicts and were less pleasant to deal with.

She said that she got on well in Castletroy and that Ms JC had pretended to be her friend. She stated that she had been told that she was going in the right direction to be a supervisor and had received two pay rises following her recruitment.

She said that following her advising Ms JC of her pregnancy she was put into the Parnell St. outlet and that she had never discussed her issues as regards sickness with Ms JC. She stated that she did have pelvic issues during her pregnancy and that standing for a long time was a difficulty and she would have found it impossible to lift boxes.

She worked a mixture of shifts in Castletroy including weeks with two nights and one day. The vast majority of weeks however she worked two days and one night.

The Complainant stated that Ms RD did not remove the fish and sausages from the freezer on 9^thFebruary but had asked her to do so when she arrived for work at 5.00pm. The Complainant stated that she, the Complainant, had then asked Ms M to do so. She stated that she had texted Ms RD on completion of her shift to say that she was not sure Ms M had completed the tasks as requested.

The Complainant stated that Mr DR, when he called the following day, did not say very much to her. She said that Ms JC rang her on the 10^thFebruary and told her she was suspended and asked her to attend for work as normal that day.

She stated that she did not have any substantial work to do in the city centre outlet following her assignment there.

Under cross examination the Complainant confirmed that she lived in the general area of the city centre outlet.

She stated that she was not sure that the December meeting took place in Castletroy. To her recollection that meeting did not take place and consequently both witnesses told lies in that regard.

She stated that, on 9^thFebruary, she removed the box of fish from the freezer herself but did not take the sausages out. She said that she did not know how to separate the fish and she was not shown how to do so. She agreed that she did not double check the fish before leaving the premises upon the conclusion of her shift. She said that she did know how important the fish was but she did not check the matter.

In response to questions from the Court she confirmed that she suffered a detriment because she did not like the location of the Parnell St. outlet. She said that she was not asked to do anything in the Parnell St. outlet which caused her any physical difficulty. She said that the job in the Parnell St. outlet involved less lifting that the job in Castletroy.

The Law

In a line of authorities starting with the decision in C-177/88,Dekker v Stichting Vormingcentrum voor Junge Volwassenen[1990] ECR 1-3841 the Court of Justice of the European Union has made it clear that since pregnancy is a uniquely female condition any adverse treatment of a woman on grounds of pregnancy is direct discrimination on ground of her sex. Thus, the law of the European Union recognises the reality that to treat a woman less favourably because she is pregnant is to discriminate against her because she is a woman.

In C-232/09Danosa v LKB Lizings SIA[2011] CMLR 45, at 60, the CJEU 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 leave”

• “During that period, Article 10 of Directive 92/85 does not provide for any exception to, or derogation from, the prohibition on dismissing pregnant workers, save in exceptional cases not connected with their condition, provided that the employer gives substantiated grounds for the dismissal in writing”

In this case, the Complainant contends that she was dismissed during her pregnancy as well as adversely treated as a result of becoming pregnant and prior to her dismissal. Section 85A of the Act provides for the allocation of the probative burden as between the Complainant and the Respondent in cases coming with its ambit. This section provides, in effect, that the Complainant bears the initial burden of proving facts from which discrimination may be inferred. If those facts are established, and if they are regarded by the Court as of sufficient significance to raise an inference of discrimination, the onus passes to the Respondent to show that the principle of equal treatment was not infringed in relation to the Complainant.

Where the probative burden shifts the Respondent must show a complete dissonance between the discriminatory ground relied upon and the impugned conduct or omission.

For reasons already mentioned in this Determination, the special protection afforded to pregnant woman against dismissal requires that where a pregnant woman is dismissed the employer must bear the burden of proving that the dismissal was grounded on exceptional circumstances unrelated to pregnancy or maternity. Hence, in every case in which pregnancy related dismissal is in issue, the factual combination of the dismissal and the woman’s pregnancy must, in and of itself, place the onus of proving the absence of discrimination firmly on the Respondent. The Dismissal of the Complainant is disputed in this case. However, given the fact that the employment terminated at some point between 10^thFebruary 2016 and 19^thJuly 2016 and given that the Complainant has submitted that she believes she was constructively dismissed the Court places the burden of proving that the termination was not tainted by discrimination upon the Respondent.

Discussion and Conclusions

The complainant has contended that she has been the victim of discrimination in two respects arising from her pregnancy and consequently that she was discriminated against on grounds of her gender. She contends that her transfer to the Parnell St. outlet took place without discussion with her. She contends that the decision to locate her in that outlet was directly related to her pregnancy and amounted to adverse treatment. That adverse treatment amounted to a change in her hours on at least one day per week but more likely on two days per week and assignment to a location to which, she submitted, was an area of social and economic disadvantage where some customers appeared to be under the influence of drugs or alcohol. She also contends that she was constructively dismissed by her employer and that this amounted to discrimination on grounds of her gender.

As set out above the entire period of pregnancy and maternity constitutes a special protected period. Consequently, it is for the Respondent in this case to establish that no adverse treatment was afforded to the Complainant on grounds of her pregnancy and that she was not constructively dismissed arising from her pregnancy.

The Respondent has submitted that at a meeting in December 2015 the Complainant advised the Respondent that she was pregnant and that she was suffering consequent physical difficulties to the degree that she was concerned as regards her physical capacity to remain in employment during her pregnancy. Two witnesses for the Respondent gave evidence that the Complainant had attended such a meeting and that she had participated in a discussion which had concluded in a decision to assign her to the Parnell St. location. The Respondent gave evidence that the decision which was jointly reached was based on the minimal nature of the physical demands which would be placed upon the Complainant in the Parnell St. location.

The Complainant in her evidence to the Court could not recollect the meeting in December 2015 and stated that both witnesses for the Respondent were lying in respect of their account of that meeting. She accepted in evidence that she was experiencing some physical difficulties as a result of her pregnancy. She also accepted that her role in the Parnell St. location placed no physical demands upon her which posed a difficulty for her.

The Respondent disputed that the clientele in the Parnell St. outlet were in any way more difficult or challenging than those in the Castletroy outlet and submitted that the location was not exceptionally socially or economically deprived. The Complainant submitted that some customers were challenging and that the area was socially and economically deprived.

The Court has considered the conflict in the evidence of the parties as regards the occurrence of a meeting in Castletroy in December 2015 and on the balance of probabilities prefers the evidence of the two witnesses for the Respondent over that of the Complainant. The Court therefore concludes that the decision to transfer the Complainant to the Parnell St. location was jointly arrived at as a solution to the concerns raised by the Complainant as regards the risk she foresaw in relation to her capacity to remain in employment throughout her pregnancy.

Notwithstanding that the decision to re-locate the Complainant was jointly arrived at the obligation is upon the Respondent to ensure that no adverse treatment, howsoever decided upon, is afforded to the Complainant as a result of her pregnancy. The Court has heard conflicting submissions as regards the nature of the area where the Parnell St. outlet was located and as regards the nature of some customers and the challenge they posed. The Court has been given no evidential basis to conclude that the location of the outlet in Parnell St. was in any way more or less socially or economically disadvantaged than Castletroy or that the customers in one location were any more challenging than customers in another. No submission has been made to the Court that the Complainant suffered any adverse impact upon her earnings as a result of her transfer. The Court accepts the submission of the Respondent that the allocation of evening shifts in the Parnell St. location was the joint decision of the parties designed to take account of the fact that the location was not busy at those times and the work required of the Complainant was consequently not physical in content. The Court in this regard notes the complainants own evidence as regards the work in the location and the minimal demands it placed upon her. No submission has been made to the Court by the Complainant that the nature of the work she was asked to perform in Parnell St. placed her capacity to perform such work in issue.

The Court notes the text messages supplied to the Court which recorded exchanges between Ms JC and the Complainant between the date of her assignment to Parnell St. and the 10^thFebruary 2016. The Court notes that no evidence of complaint or dissatisfaction expressed by the Complainant was put before the Court. The Court notes the Complainant’s evidence that she did raise concerns but also notes that she was unable to identify any particular occasion when she raised a concern with the Respondent between the date of her assignment to the Parnell St. location and the date of her final shift on 10^thFebruary 2016.

The Court has heard evidence as regards the events of 9^thand 10^thFebruary. The Court has heard conflicting evidence as regards whether the Complainant was asked to remove boxes from the freezer on 9^thFebruary. The Complainant in her own evidence stated that at no time between her assignment to the location and the 9^thFebruary 2015 was she asked to undertake work of a physical nature. She contends that for the first time on 9^thFebruary she was asked to remove boxes from the freezer. The evidence of Ms RD was to the effect that she removed the boxes herself some two hours before the shift of the Complainant commenced. The Court prefers the evidence of Ms RD in this respect.

Ms JC stated in evidence for the Respondent that she had never suspended a member of staff in her period of employment as a manager for the Respondent. She stated that she did advise the Complainant on the 10^thFebruary that she was disappointed but that she did not suspend her or make any statement which could be so interpreted. The Complainant stated in evidence that she was contacted by the Mr DR on 10^thFebruary but that he ‘did not say much’. She stated that she was contacted by Ms JC on 10^thFebruary who suspended her and asked her to attend for work as normal that evening. The Court finds it difficult to accept this evidence as credible. If a suspension had taken place on the day of 10^thFebruary the Complainant could not logically be asked to attend for work later on that same day. The Court therefore, on the balance of probabilities, concludes that the Complainant was not suspended by the Respondent on 10^thFebruary. Her non-attendance at work thereafter was a result of certification by her medical advisers.

For a termination of employment to be regarded as a constructive dismissal the behaviour of the employer must be so unreasonable as to leave the employee with no option but to cease her employment. The Court cannot, in this case, identify behaviour of the Respondent throughout the events of 9^thand 10^thFebruary which could be regarded as unreasonable to the degree that the Complainant was left with no option but to terminate her employment.

In all of the circumstances the Court concludes that the assignment of the Complainant to the Parnell St. location in the general vicinity of her home and which took place as a result of her pregnancy did not amount to adverse treatment. The Court finds that the Respondent has discharged the burden of proof which it bore in that regard.

The Court also concludes that no constructive dismissal of the Complainant took place as a result of the events of 9^thand 10^thFebruary 2016.The Court finds that the Respondent has discharged the burden of proof it bore in that regard.

Determination

For the reasons outlined above the Court determines that the Respondent did not discriminate against the Complainant on grounds of gender in terms of Section 6(2) of the Act and contrary to Section 8 of those Acts. The decision of the Adjudication Officer is set aside and the appeal of the Respondent is upheld.



Signed on behalf of the Labour Court



Kevin Foley
JD______________________
10 January 2018Chairman



NOTE

Enquiries concerning this Determination should be addressed to John Deegan, Court Secretary.