Complainant

Respondent

Parties

Gillian Fanning

City of Dublin Education and Training Board

Complainant

Respondent

Anonymised Parties

A training course attendee

A training provider

Representatives

Killian O'Brien Bowler Geraghty & Company Solicitors

Bill Austin CDETB

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00009958-001

28/02/2017

The complainant was an attendee at a training course provided by the respondent. The complainant contends that she was discriminated against on the grounds of gender and family status, discriminated against in relation to the provision of training, was victimised and was subject to a discriminatory dismissal. The complainant contends that the incidents relating to her complaint occurred when she informed the respondent she was pregnant on 5th October 2016. The complainant contends that she was removed from her training course on the basis of her pregnancy.

The complainant has also submitted a complaint on the same set of facts under the Equal Status Acts, 2000-2015. The Adjudication reference for that complaint is ADJ-0008109.

The respondent contends that the complaint should be dismissed on the basis that there is no employment relationship between the parties. The respondent contends that the complainant was never employed by the respondent and did not have a contract of employment. The respondent stated that the complainant was, at all times, a trainee and was in the process of completing a training course with the respondent. The respondent contends that in the circumstances where there was no employment relationship, the complainant does not have locus standi to bring a complaint under the Employment Equality Acts.

The complainant contends that she is an employee of the respondent on the basis of the contents of correspondence issued by the respondent pertaining to PRSI contributions. The complainant also stated that she is an employee by virtue of other correspondence issued by the payroll department as well as the letter of dismissal which issued to her.

The complainant referred to Section 2 and Subsection 3 of Section 2 of the Employment Act 1998 which she contends supports her position with regard to her employment status with the respondent. The complainant also referred to Section 12 of the 1998 Act with respect to vocational training and the applicability of the Act on the basis of the provisions of that section.

Both parties submitted supplemental submissions on this preliminary point. The date of receipt of the most recent submission was 11th June, 2018.

In relation to this point I find that the provisions of 12(1)(c) and Section 12 (2) of the Employment Equality Act, 1998 provides that:

“an educational or training body, who offers a course of vocational training shall not, in respect of any such course offered to persons over the maximum age at which those persons are statutorily obliged to attend school, discriminate against a person (whether at the request of an employer, a trade union or a group of employers or trade unions or otherwise

(c) in the manner in which any such course or facility is provided, or…..

(2) In this section “vocational training” means any system of instruction which enables a person being instructed to acquire, maintain, activity and which may be considered as exclusively concerned with training for such an activity. bring up to date or perfect the knowledge or technical capacity required for the carrying on of an occupational activity and which may be considered as exclusively concerned with training for such an activity.”

On the basis of the provisions of Section 12 of the Employment Equality Acts 1998-2015, and the vocational nature of the training that the complainant was attending, I find that the substantive complaint can be considered under that legislation.

The complainant commenced a training course with the respondent on 5th September 2016. The aim of the training course was to provide the Equestrian Industry with personnel skilled to Equestrian International Instructor Level 1 and British Horse Society (BHS) Assistant Instructor. The complainant confirmed that she began her training and was assigned to a particular Stud on 13th September 2016. The complainant stated that of the four stages of the BHS Curriculum, she had completed the first two stages and half of the third stage, which she subsequently completed.

The complainant stated that she informed her manager of her pregnancy on 5th October 2016 and that the manager subsequently informed the respondent on that same date. The complainant stated that a risk assessment was subsequently carried out at the Stud and it was agreed that the complainant would continue on the course by frontloading the theory elements of the training and would return at a later date to complete the remaining practical elements.

The complainant stated that she was informed by telephone on 2nd December 2016 and subsequently by letter dated 7th December 2016 that she was required to take a maternity break from the training programme. The complainant stated that this occurred despite the fact that a risk assessment had been carried out and management at the Stud were happy for her to continue as agreed. The complainant stated there was no engagement with her on the issues and she was not given any opportunity to appeal the decision.

The complainant stated that she sought a meeting with the respondent but was informed that the decision would not be changed. The complainant stated that she was subject to direct discrimination on the basis of her gender and family status and indirect discrimination by reason of receiving less favourable treatment as a consequence of the actions of the Respondent. The complainant also claims that she was victimised by the respondent and was dismissed for discriminatory reasons.

The respondent refutes the complainant’s position. The respondent contends that by letter dated 7th October 2016, the respondent wrote to the complainant and stated that:

“due to the physical nature and demands of the Equestrian Instructor course you will be required to take a maternity break from 16th December 2016 and are welcome to returnto complete your course at a future date”.

The respondent strongly denies that the complainant was “removed from the course” as claimed. The respondent stated that the complainant was required to take a break from the course strictly for Health and Safety reasons and had a guaranteed entitlement to return to complete the course. The respondent contends that despite the requirement for the complainant to take a maternity break, the respondent wrote to her encouraging her to make contact in r elation to completing her qualifications. The respondent stated that custom and practice within the organisation requires trainees to take a maternity break and return to complete the training at a later date. The respondent stated that there has been no attempt to treat the complainant in a less favourable manner than any other trainee. It reaffirmed that its decision was based solely on Health and Safety grounds with the wellbeing of the complainant at the forefront at all times. The respondent stated that the complainant’s place on the training course remains available to her to date.

Discrimination

Discrimination is defined under Section 6 of the Employment Equality Acts, 1998-2015 as follows:

6(1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances 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,

(b) a person who is associated with another person —

(i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and

(ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination.

(2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are—

(a) that one is a woman and the other is a man (in this Act referred to as “the gender ground”),

(b) that they are of different civil status (in this Act referred to as “the civil status ground”),

(c) that one has family status and the other does not (in this Act referred to as “the family status ground”),

(d) that they are of different sexual orientation (in this Act referred to as “the sexual orientation ground”),

(e) that one has a different religious belief from the other, or that one has a religious belief and the other has not (in this Act referred to as “the religion ground”),

(f) that they are of different ages, but subject to subsection (3) (in this Act referred to as “the age ground”),

(g) that one is a person with a disability and the other either is not or is a person with a different disability (in this Act referred to as “the disability ground”),

(h) that they are of different race, colour, nationality or ethnic or national origins (in this Act referred to as “the ground of race”),

(i) that one is a member of the Traveller community and the other is not (in this Act referred to as “the Traveller community ground”).

(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.

Family Status

Family Status is defined under Section 2 of the Employment Equality Act, 1998 as follows:

“family status” means responsibility—

(a) as a parent or as a person in loco parentis in relation to a person who has not attained the age of 18 years, or

(b) as a parent or the resident primary carer in relation to a person of or over that age with a disability which is of such a nature as to give rise to the need for care or support on a continuing, regular or frequent basis,

and, for the purposes of paragraph (b), a primary carer is a resident primary carer in relation to a person with a disability if the primary carer resides with the person with the disability.

Burden of Proof

Section 85A of the Act provides as follows in relation to the burden of proof which a Complainant must establish:

85A (1) Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.

(2) This section is without prejudice to any other enactment or rule of law in relation to the burden of proof in any proceedings which may be more favourable to a complainant.

(3) Where, in any proceedings arising from a reference of a matter by the Authority to the Director General of the Workplace Relations Commission under section 85(1), facts are established by or on behalf of the Authority from which it may be presumed that an action or a failure mentioned in a paragraph of that provision has occurred, it is for the respondent to prove the contrary.

(4) In this section ‘discrimination’ includes —

a) indirect discrimination,

(b) victimisation,

(c) harassment or sexual harassment,

(d) the inclusion in a collective agreement to which section 9 applies of a provision which, by virtue of that section, is null and void.

In the instant case the complainant stated that she was discriminated against on the gender ground when the respondent was notified of her pregnancy. The complainant also claimed to have been discriminated directly on grounds of family status, victimised and subject to a discriminatory dismissal.

In relation to the burden of proof, I find that the complainant has established a prima facie case of discrimination and the burden of proof shifts to the respondent.

In relation to the complaint of discrimination on the family status ground, I find that this complaint is not well found on the basis that on the date of the last act of alleged discrimination

(30th December 2016) the complainant did not satisfy the family status requirement under the legislation.

In relation to the complaint of victimisation, I find that this complaint is not well founded. Victimisation occurs as a result of the complainant having raised the issue of discrimination. In the instant case, the complainant has not provided any evidence that she was victimised as a result of having raised a complaint of discrimination.

In relation to the complaint of alleged discriminatory dismissal, I find that this complaint is not well founded on the basis that the respondent confirmed to the complainant that she was welcome to return to complete the training after her pregnancy and actively encouraged her to do so.

In relation to the Maternity Leave policy currently in use, I find that the policy is lacking in any particular detail to justify what occurred on this occasion. The policy, under Health and Safety simply states:

“We may ask for confirmation from your doctor that it is safe for you to continue your training. This will depend on the type of training programme you are doing. If a risk is identified, we may suspend all or part of your training in the interest of Health and Safety.”

The respondent confirmed in evidence that once it was aware of the complainant’s pregnancy it invoked the policy and issued its direction to the complainant.

On this issue, I find that the contents of the policy are in contrast to the arbitrary decision made by the respondent in directing the complainant to take a maternity break from the training course. This decision was made with no input from the complainant and in circumstances where a risk assessment had been carried out and an agreement reached with management at the Stud that the complainant could continue with the theoretical element of the training course.

In relation to the complaints of discrimination (direct and indirect), I find that only the complaint of direct discrimination on the gender ground succeeds. The complainant was required to take a mandatory maternity break from her training course shortly after the respondent was notified of her pregnancy. The respondent stated it was in line with its Maternity Leave policy and Health and Safety concerns. I do not accept the respondent’s position on this point as a risk assessment had been carried out by the complainant and management at the Stud and an agreement was reached that the theory element of the training could be front loaded and the practical element could be taken at a later date. Accordingly, I find that the respondent’s actions constituted direct discrimination in contravention of Section (6)(2)(A) of the Employment Equality Acts, 1998-2015.

Having considered the submissions of both parties and all of the evidence adduced at the hearing of this complaint, I declare that the complaint is well founded in part. The respondent discriminated against the complainant on the gender ground and is required to pay the complainant €8,000 in compensation for the infringement of her rights under the Act within six weeks of the date of this decision.

The respondent is also directed to review its Maternity Leave policy to ensure compliance with equality legislation. This review should be carried out within a period of three months from the date of this decision.