Complainant

Respondent

Anonymised Parties

A Clerical Officer

A Pubic Service Body

Representatives

Act

Complaint Reference No.

Date of Receipt

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

CA-00018390-001

09/04/2018

The complainant had a miscarriage and sought sick leave from her job on that account.

Following her sick leave certain deductions were made from her salary which she now contests.

The complainant says that other women in her position had been facilitated with leave as ‘pregnancy related illness’.

She went on leave between January 12th and March 12th but had no indication as to how her leave would be treated although she continued to be paid.

The position of the HR department was that, as there was no baby the leave could not be pregnancy related. The Occupational Health doctor disagreed with this view.

On her return to work, a number of deductions were made from her wages; €386 on March 25th and €193 on March 28th.

She complained about the deductions on March 28th but she did not receive a reply.

The respondent raises a preliminary issue.

There is no prima facie case and no evidence has been adduced of any discriminatory act.

If any case arises it should have been submitted under the Payment of Wages Act, not a complaint of discrimination.

There is no definition of ‘pregnancy-related illness’. The respondent has always taken the view that it does not apply to illness absence following miscarriage and this is the view of its counterpart in Northern Ireland.

A person becomes eligible for this leave only when they have exhausted their entitlement to the normal sick leave scheme, and pregnancy related illness was a factor in the exhaustion of her entitlement.

Initially it appeared to the respondent that the complainant had exhausted her entitlement to paid sick leave.

However, on review it transpired that she did have some entitlement and the respondent then also applied the pregnancy related sick leave scheme to the complainant for a short balance of the time she was out sick.

The complainant was eligible for forty-one days sick pay. Therefore, her entitlement to the sick pay scheme ran out on March 4th. Her entitlement to the pregnancy related scheme commenced on March 5th. She returned to work on the 12th.

The complainant failed to claim illness benefit from the Department of Social Protection while she was put on leave and the respondent payroll department failed to deduct the benefit at source in line with the provisions of its sick leave scheme.

On discovering this, the overpayment was recouped.

When it became clear that the complainant had not received the social protection payments the recoupment process was put on hold until she did.

The deductions in question should have been made on a continuing basis when the complainant was out sick but due to an error were not. The respondent fully accepts this and acknowledges that this delay should not have occurred.

However, the rationale for the deductions was fully explained to the complainant.

The respondent says that the complaint under the Employment Equality Act is misconceived.

The respondent has acknowledged that aspects of its handling of the matter were not as they could have been.

Admittedly, the complainant was told that she would not be eligible for pregnancy related leave on account of the miscarriage, but after that communications with her left something to be desired.

The complaint is made on the family status ground and concerns the deductions from her wages.

The question in this adjudication is whether this represented an act of discrimination; i.e. less favourable treatment of the complainant than of another person who had a different family status.

I share the respondent’s surprise that this claim was not pursued under the Payment of Wages Act (in respect of the merits any such complaint I make no comment whatsoever).

The standard required to establish a prima facie case is relatively low. It is not the same as having to establish that the complaint is likely to succeed; merely that facts have been presented that are of sufficient significance to raise a presumption of discrimination.

Section 85A of the Equal Status Act deals with the burden of proof in discrimination complaints as follows;

(1)    Where in any proceedings facts are established by or on behalf of a person from which it may be presumed that prohibited conduct has occurred in relation to him or her, it is for the respondent to prove the contrary

A prima facie case establishes three things

·         That the complainant is covered by the relevant discriminatory grounds,

·         There was specific treatment by the respondent,

·         The treatment was less favourable that treatment that was or would have been afforded to another person (the comparator) in similar circumstances.

Equality Officers have held, for example in Mr Marcin Wilcocki v Alliance PLC (DEC-S2016-032), relied on by the respondent, that there must be facts of ‘sufficient significance’ to raise a presumption of discrimination. It is not sufficient to simply be a member of a protected group      to render acts discriminatory, if for example no comparator exists or the acts are transparently attributable to a non-discriminatory cause.

The complainant has failed to establish any facts which meet the criteria just set out and she has failed to make out a prima facie case.

The deductions were made on foot of the provisions of the respondent sick leave scheme which has universal application to all of its employees on the same basis.

Accordingly, no complaint of discrimination has been made out and her complaint fails.

For the reasons set out above I do not uphold complaint CA-00018390-001 and it is dismissed.

Equality, Family Status.