Complainant

Respondent

Anonymised Parties

A Retail Sales Assistant

A Retail Clothing Company

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00016737-001

11/01/2018

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

CA-00016737-002

11/01/2018

The Complainant worked as a sales assistant in the Respondent’s retail clothing shop. She was offered a promotion to a supervisor/key holder which she accepted. She was told by her manager that a written contract would be prepared to reflect the promotion and she could sign it after she returned from holidays.  However, at that time the Respondent found out that she was pregnant and after she returned from holidays they would not produce the contract to be signed, despite requests to do so. Despite this she was still required by the Respondent to work at the promoted level for 7 months but was only paid at a sales assistant rate. She was told that she would be compensated for this but that never happened. She worked under great stress until a month before she was due to take maternity leave and then was hospitalised for pregnancy related illness. She informed her employer that she would not be able to return to work until after her maternity leave at which point the Respondent’s immediately signed contracts for another employee who was not pregnant to become a supervisor,

Facts:

1.       The Complainant started work as a retail assistant with the Respondent on 8 February 2016.

2.       She remained at this level until June 2017 when she was due to take annual leave

3.       Prior to going on holidays her manager told her that they would be losing a supervisor and asked if she would consider a promotion to that of supervisor/key holder. This involved greater responsibility and as a key holder the onus of opening and shutting the shop premises. The salary difference between the sales assistant role and supervisor/key holder was €600 per month. As a sales assistant her net salary was €1400 net per month and the supervisor salary was €2000 net per month.

4.       The Complainant accepted the offer and was told that she would sign contracts to reflect the promotion on her return from holidays

5.       In the days before she was due to go on holidays she found out that she was pregnant. She had not intended telling anyone as the pregnancy was only a matter of weeks. However, before she left, her manager asked her directly if she was pregnant and the Complainant felt that she had to be honest even though she would have preferred no one other than herself and her husband would know this news at that time.

6.       On return from holidays she was trained in as a supervisor and was given a key of the premises. She asked the manager about the contract but was told that would be sorted out later. She asked also about a pay increase and was told that that too would be sorted out later. Nonetheless she continued work as a supervisor and key holder from June 2017 until September 2017.

7.       In September 2017 the supervisor, who she was being trained to replace, instead was going to remain as a supervisor. The Complainant was told that they would only need her to act up as a supervisor depending on whether the other supervisor was working or not. 

8.       From September 2017 until November 2017 the Complainant worked on this ad hoc basis, depending on the needs of the business, as a supervisor or a sales assistant. She remained a key holder at all times.

9.       However, her pay still remained as a sales assistant and never reflected the increase in her duties.

10.   When she asked about pay she was told that this would all be sorted out by the end of the month and then the end of the year. It was never sorted out.

11.   In November 2017 the sitting supervisor handed in her notice and the Complainant then expected that she would receive a written contract and that her pay issue would be rectified. She was concerned that the regularisation of her terms occur before she went on maternity leave, which was in late January 2018.

12.   In November 2017 the Complainant received a letter from the Respondent. The letter stated that the Complainant would be entitled to benefit from the Company maternity pay scheme. The Complainant was surprised by this because she had not yet completed the 2 full years of service which were necessary to become entitled to this scheme.

13.   She asked her manager about her pay and regularisation of her position. She was told that instead she was being compensated on the basis of allowing her avail of the maternity pay scheme even though she had not met the criteria.

14.   She was told that there was a condition to this, if she did not come back to work after her maternity period that she would have to repay the maternity pay to the Company. Some of her friends advised her at that stage to take the maternity pay and if she did not wish to return after her baby the Company could not do anything about that. However, the Complainant felt that this was dishonest.

15.   The Complainant was not 100 % certain about returning to work after maternity leave, although she thought she would, she just was not certain. Therefore, she told her manager that as she could not give the company a 100% assurance she would prefer instead to have her back pay paid and to receive a written contract confirming her status as a supervisor, as she had been led to believe would happen.

16.   On 5 December 2017 the Complainant received a letter stating that the offer of maternity pay was being withdrawn

17.   The Complainant continued to work as an ad hoc supervisor and sales assistant until 5 January 2017, at which point she was hospitalised due to a pregnancy related illness.

18.   From the hospital the Complainant contacted the Respondent and told them that due to medical advice she would have to start her maternity leave early and could not work until 21 January 2018 (which had been her planned leave date)

19.   She still believed at this point that the pay issue would be regularised as she had been told and that she could receive a written contract to reflect her position as supervisor.

20.   While in hospital the Complainant learned that another sales assistant, someone who was more junior to the Complainant had signed a written contract to be the supervisor. This person was not pregnant.

21.   The Complainant believes that the reason that her promotion was not given effect to (even though she did the work at the promoted level for 7 months) was because she was pregnant. The prevarication about confirming her pay and status caused her stress and anxiety and yet there was no prevarication about promoting another non -pregnant employee as soon as she went on maternity leave.

22.   A complaint was brought to the WRC on 30 January 2018 for Pay and Equality.

Pay

The Complainant submits that she was offered a promotion to supervisor in June and from finishing her training in June until January 2018 she should have receive pay to reflect that offer but also the fact that she was doing the work of a supervisor/key holder and was assured for months up until her maternity leave that the difference in her pay would be made up. As there was an agreement to work as a supervisor and as she did that work for 7 months, the failure to pay her the difference between a sales assistant salary and a supervisor salary was an unfair deduction until the Payment of Wages Act 1991. Remedy sought: 7 months at a difference of €600 net per month equals: €4200.00

Equality

The Complainant was treated differently and detrimentally as soon as the Respondent found out that she was pregnant. This is gender based discrimination. She was allowed believe that there would be a rectification of her status by that did not occur. The agreement to promote her was breached by the Respondent as soon as they learned of her pregnancy. However they still required her to work at the promoted level but she was not paid for it. Instead in November 2017 she was offered something that she had not requested (to be able to avail of a maternity pay scheme) that was conditional on her returning to work after her maternity leave was finished. She did not wish that condition to be in place and instead believed that the Respondent had a responsibility to rectify the status and pay anomaly that had persisted since June 2017.

The only reason that she did not receive a written contract reflecting their agreement for her to be promoted to a supervisor was because the Respondent manager found out that she was pregnant. There is no other explanation and yet for 7 months they told her that the situation would be rectified. This false advice persisted until such time as she had to be hospitalised and then someone else who was not pregnant got the post that she had been promised 7 months earlier; for which she had been trained and as such, for the 7 months, she had worked.

No appearance

No submission filed

Having been satisfied that the Respondent was properly on notice of this Adjudication hearing I proceeded to determine this complaint as follows:

Pay: CA-00016737-001

I find that there was an offer and acceptance between the parties in place in June 2017 and therefore there was a contract, albeit not in writing, that the Complainant was promoted to be a supervisor. I accept her uncontested evidence that following this agreement she was trained to be a supervisor and did the work of a supervisor/key holder but despite this she did not receive the salary which a supervisor/key holder would receive. I find therefore that an unlawful deduction of her salary occurred over 7 months in that she did not receive the pay that the Respondent had agreed would be paid to her. I find this complaint to be well founded I make the following award calculated on the basis of 7 months of an unlawful deduction of €600 net per month:

Award: €4200.00

Equality: CA-00016737-002

I find the uncontested evidence of the Complainant to be credible, namely that the reason that she did not receive the promotion that had been agreed to and the fact that even though she continued to work as a supervisor but her position was not regularised was because she had told her manager in June 2017, when asked by her, that she was pregnant.

All the assurances she was given over a period of 7 months; that her position would be regularised were false in that as soon as she went on maternity leave earlier than was planned a contract of supervisor was agreed with another non- pregnant staff member. This constitutes unequal and unfavourable treatment on grounds of the Complainant’s sex and I am satisfied that a prima facie case of discrimination is well founded.

As there is no appearance by the Respondent no defence to this complaint has been made out I find that the complaint that discrimination complaint is well founded and I make the following award. I do so to reflect the abject nature of the discrimination, that an award should operate to deter discriminatory practices and that the Respondent made no effort to defend the complaint.

Award: €15,000.00