Complainant

Respondent

Anonymised Parties

An Employee

A Healthcare Company

Representatives

Represented byByrne Wallace Solicitors

Represented byPeninsula

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-00024130-001

14/12/2018

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

CA-00022153-001

25/09/2018

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

CA-00022630-001

15/10/2018

The complainant left her position with the respondent in February 2017 to take up a part-time position with another company. In July 2017, the complainant was contacted by the respondent’s sales director and asked would she return to employment with the respondent. The complainant states that she indicated she required a part-time role taking into account her childminding responsibilities. The complainant recommenced employment with the respondent on 11 September 2017, on a part-time basis, working 25 hours per week, as provided for under her contract of employment.  The complainant is alleging discrimination on grounds of disability, gender and family status.   

The complainant states that she has suffered intermittently with stress and anxiety since 2010. The complainant submits that she has attended at her GP in respect of her medical condition and was prescribed medication. The complainant states that she has taken actions to manage work related stress and anxiety and that she discussed these actions with her manager Ms. C (Sales Director). The complainant contends that she informed Ms. C during one or more of her monthly strategy meetings in early 2016 that she had attended a 10 week course on mindfulness, space and stress reduction at the Turning Point Institute in Dun Laoghaire. The complainant contends that she also has family members who suffer from medical conditions that qualify as disabilities under the Acts. The complainant states that her aunt suffered from dementia and her mother suffered from age related stress and memory loss and she had discussions with Ms. C in relation to these matters.

The complainant states that she worked with the respondent from 11 September 2017 to early June without any issue and understood that management was satisfied with her performance and her part-time status. The complainant contends that in or around 2 June 2018, the complainant was subjected to harassment by the Sales Director, Ms. C. She states that she was outside a restaurant and about to enter for a company dinner when Ms. C asked the complainant if she knew “what we call you in the office” and the complainant said “no”. Ms. C responded “we call you dementia girl”. The complainant states that she found this humiliating and demeaning and was too distressed to respond. She was not aware that she was known by any nickname and was very concerned that her colleagues might refer to her in this manner.

The complainant asserts that later at the dinner, in front of the entire company staff, the MD’s wife and son and a company supplier (11 persons in total) Ms. C asked the complainant to relay to everyone what the sales director had told the complainant earlier. It is submitted that Ms. C then asked the complainant “what name do we have for you ? ” The complainant submits that she was extremely uncomfortable with this issued being raised in this context and said “no Michelle. I think you should tell them”. Ms. C responded “no you tell them”. The complainant states that to diffuse the tension, the complainant said in a defensive manner “I would Michelle but I have forgotten” and everyone at the table laughed.

The complainant submits that the derogatory nickname used by Ms. C was particularly hurtful for the complainant taking into account the medical condition of the complainant’s aunt and her concerns in respect of her mother.

The complainant submits that this interaction significantly changed the relationship between her and Ms. C. Ms. C became increasingly confrontational towards her and challenging to deal with. The complainant contends that Ms. C also criticised the complainant’s planning and reporting including in an aggressive manner at a meeting on 25 July 2018. The complainant was due to go on leave from 7 August to 4 September; Ms. C said that she would need to discuss these issues further with the complainant on her return to work in September but never did so.

The complainant states that she was subjected to further harassment by Ms. C on 2 August 2018. On that date, the complainant and Ms. C were due to meet the procurement manager from the Hermitage Clinic. The complainant submits that immediately prior to that meeting, Ms. C demanded the return of the complainant’s work phone, in a confrontational manner. While the complainant was due to go on leave from 7 August, this was not a reason for Ms. C to demand her phone as she always retained her phone while on leave. The complainant states that this interaction was very disconcerting for the complainant and caused her stress and anxiety in advance of the meeting. When the procurement manager joined them, the complainant got his name wrong. It was the first time the complainant had met him. The meeting with the procurement manager went very well but after the meeting, Ms. C focused on the fact that the complainant had got his name wrong. The complainant asserts that Ms. C then sent a WhatsApp message to the complainant’s personal phone with a link to a video about Alzheimer’s prevention.

The complainant contends that the incidents of harassment in June and August 2018 are linked to a disability/an imputed disability of the complainant/her family members and/or is a form of discrimination by association. The complainant was on leave from 7 August to 4 September. She states that she was stressed and anxious in advance of her return to work as a result of the conduct of Ms. C between June and August. She states that she had considerable pain in her neck and upper back. She attended her GP on 29 August and was prescribed medication but wished to return to work as she felt that taking sick leave would put her in a more difficult position with Ms. C on her return. The complainant states that on Tuesday 4 September 2018 she returned to work. She received an e-mail from Ms. C asking her to attend a meeting with her in relation to her annual review. On 6 September at the annual review, the complainant was surprised to find that both the Managing Director and Ms. C were in attendance. Ms. C advised that the company did not feel that the part-time position was “working out”. The complainant submits that Ms. C indicated that they wanted her to work on a full-time basis instead. The MD indicated that “it just isn’t working” and further explained that they had “various examples of how it’s not working” and wanted her to come back full-time. The MD did not give an outline of the alleged examples. The complainant states that she queried what would happen if she did not take the full-time position. The complainant states that the MD responded by saying “obviously we want you to take plan A which is full-time but if you choose plan B, we will have to come to some agreement amicably”. The complainant felt the message from the MD was clear, in that if she did not move to full-time work, she would not be continuing with the company. However, the complainant states that there was the offer of a termination agreement of some kind as part of plan B. The complainant indicated at the close of the meeting that she would need to consider matters over the weekend.

The complainant submits that on Monday 10 September, she called Ms. C at 9 am and advised her that she could not take a full-time position but wanted to continue part-time. The complainant queried what the upshot of this would be. The complainant states that she also indicated that if she was to be dismissed, she could continue on a part-time basis for an adequate amount of time in order to help with the transition to a new employee. Ms. C indicated that this was not a decision for her but she would discuss it with the MD. The complainant states that ten minutes later, Ms. B called her back and informed her that the position had not changed on the part-time role. Ms. C also stated that because the complainant had just returned from 4 weeks of leave, there was no point in starting back to work only to finish up in another month. Ms. C indicated that the company would make a payment of a month’s pay in lieu of notice and asked the complainant to send an e-mail to the MD to confirm their discussion. The complainant states that she said to Ms. C she would be uncomfortable with that as she had not initiated the process and wished to continue in her role on a part-time basis. The complainant submits that she indicated that the MD should send an e-mail to her confirming the position to which the complainant would respond.

The complainant states that at lunchtime on the same day, Ms. C contacted her and asked her to work the following day, a request the complainant accommodated. On 11 September, the complainant sent an e-mail at 15.48 requesting that Ms. B or the MD confirm in writing that her part-time position was eliminated and she would be paid one month’s pay in lieu of notice as agreed. On 12 September, by telephone call, Ms. C advised that a letter confirming the position should be received by the complainant in the following days. The delay was attributable to the MD being away at the time. On the same day the complainant returned her equipment, i.e. phone, laptop etc to the office.

The complainant states that she sent an e-mail to Ms. C and the MD on 12 September confirming the recent discussions that were had between Ms. C and the MD and requested written confirmation in relation to the elimination of her post. On 13 September, the MD responded by e-mail stating “we have crossed wires and I would like to talk”. The complainant responded on the same day stating that she would prefer a written response to her e-mails before any telephone conversation. On Monday 17 September, the MD sent the complainant a detailed letter by e-mail, asked the complainant to reply to the letter by the next day and demanded that the complainant attend work the next day. The complainant states that the letter contained a number of claims that were factually incorrect. Firstly, the MD claimed that the complainant had been working part-time hours “on a trial basis since September 2017”. The complainant states that she has a contract of employment that confirms her permanent part-time status and was never working part-time on a trial basis. The contract was issued in the MD’s name. Secondly the respondent claims that the complainant resigned which she refutes. Thirdly after claiming that the complainant was wrong to believe that the company had let her go, the MD then confirmed to the complainant (in the same letter) that she was to be made redundant and would be required to attend a “consultation process”. The complainant submits that this was a sham process invented to cover up a discriminatory dismissal. The complainant states that this was a case where on the basis of the claims of the respondent, there was more work not less work available.

The complainant states that on 18 September she received an e-mail from the MD where he referred to the complainant having gone “off territory” and was “ignoring customers” which she completely refuted. The complainant’s solicitor responded on behalf of the complainant on 19 September clarifying the factual inaccuracies of the MD’s communications confirming that the complainant would not engage in a sham redundancy process when she already had been dismissed and stated that the actions of the respondent were damaging to the complainant’s health. The complainant states that the MD ignored the fact that the complainant had instructed a solicitor and e-mailed the complainant directly on 25 September. In that letter the MD further added to the complainant’s stress by refusing to accept that the complainant had been dismissed and claimed that the provision of a medical certificate was a “clear indication” that the complainant understood that her employment had not been terminated. The complainant submits that even more concerning was the MD’s continued insistence that the complainant engage in a sham redundancy process.

The complainant’s legal representative states that the respondent has continued to refuse to engage with the complainant’s repeated requests to be provided with documentation and information to which she is lawfully entitled as follows

(i)                  Written confirmation of her dismissal

(ii)                Her P45

(iii)               Her personal data under the Data Protection Act 2018

(iv)               Requests for information dated 12 October 2018 and 13 November 2018   

The complainant submits that these actions are a form of victimisation as a result of her making a complaint under the Acts. The complainant states that the actions of the respondent have had a significant effect on the complainant’s health, including extreme work stress, reactive depression with prominent anxiety features and mechanical neck pain. She asserts that she has attended at her GP in respect of these symptoms. The complainant contends that she is currently unfit for work as a result of the reactive depression and anxiety she is now enduring. The complainant states that she has been prescribed medication and counselling to deal with her symptoms.        

The complainant commenced employment with the respondent as a sales representative on 30 August 2015 working full-time hours. In November 2016, the complainant commenced taking parental leave for one day a week until she tendered her resignation in February 2017 citing her inability to work full-time hours as the reason. The employment ceased on 28 February 2017.

The respondent submits that in the period between 28 February 2017 and September 2017, the complainant was in communication with Ms. C (Sales Director) of the respondent company. The respondent contends that the complainant made it clear that she missed her job and wished to return to work for the respondent company, in particular the complainant and Ms. C were in contact regarding an emergency situation with a stent and the complainant texted to say she “would have loved that one” in WhatsApp correspondence. The respondent submits that by way of a verbal agreement between the complainant and Ms. C in July 2017, it was agreed that the complainant would recommence employment with the respondent company working 9am until 2.15 pm five days a week. The respondent submits that at the complainant’s request, she could take 3 weeks unpaid leave over the Summer school break and the parties agreed to review the arrangement after one year. The respondent maintains that it was further agreed that the complainant would work early breakfast meetings, full days or/and overnights as required to attend meetings or exhibitions. The respondent states that this arrangement was to accommodate the complainant’s work life balance. The respondent submits that ordinarily the respondent would not engage a sales representative on part-time hours. However, the respondent states that it was impressed by the complainant’s work and was keen to retain her. The respondent submits that it was aware of the complainant’s family status and chose to reengage her as an employee and this is clearly inconsistent with any allegation of discrimination against the complainant.

The respondent states that the complainant commenced employment on 11 September 2017. It states that over time it became increasingly apparent that it was not possible to fit the demands of the complainant’s job into the confines of her working hours. The respondent states that the complainant began working after 2.15 pm and working overtime in order to meet the needs of the position. In particular, the complainant attended appointments and theatre endoscopy lists which were only scheduled on afternoons.  The respondent submits that the complainant received time in lieu and payments for hours worked outside of her agreed hours, she also requested that the respondent pay for her childcare during these hours which it declined to do. The respondent profusely denies the allegations made by the complainant in relation to a work event. The respondent states that it recalls a company day out on 21 June 2018 where the parties went for a sail, followed by drinks and an Indian meal and a supplier was present at the event. The respondent finds the allegation regarding Ms. C preposterous in that Ms. C would insult the complainant as alleged, particularly in front of a large party when the MD of the respondent company and a third party were present. The respondent states that indeed the complainant failed to report this allegation. The respondent states that it is at a loss as to how or why the complainant could put forward her version of events regarding the work event on 21 June particularly when the day after the event, the complainant joked about her taxi journey home with Ms. C. The respondent submits that relations between the parties were good after 21 June. The respondent contends that on 2 August, Ms. C sent the complainant and two other employees a link to a YouTube video TED talk regarding preventing Alzheimer’s disease. The respondent states that there was nothing jovial about the video and it was an informative video by neuroscientist Lisa Genova.

The respondent submits that the complainant booked annual leave for the week commencing 6 August and in accordance with the parties agreement, she booked unpaid leave between 7 and 27 August 2018. The complainant was due to be absent from work for all but 3 working days in August. The respondent asserts that in preparation for this leave, the complainant met with Ms. C on 2 August at the Hermitage Clinic. The respondent submits that contrary to the complainant’s allegations, Ms. C did not demand the complainant’s work phone. Ms. C requested the phone so that she could manage the complainant’s accounts in her absence which placed an additional work load on Ms. C. However, the complainant not Ms. C received all of the commission for those accounts. The respondent submits that the complainant met with Ms. C and the MD on Thursday 6 September to review the situation. It was explained that the role did not have the flexibility to accommodate part-time working hours or extended leave from work. It was explained at the meeting that confining working hours from 9 am to 2.15 pm did not allow for adequate opportunity to maximise the potential of the accounts. The respondent submits that it felt that the complainant must have been aware of the fact that the role required flexibility in working hours.

The respondent submits that at the meeting, it offered the complainant a full-time role and it was agreed that the complainant would consider the offer and revert with her decision the following week. The respondent states that on Monday 10 September, the complainant contacted Ms. C and declined the offer of full-time employment and the complainant offered a 3 month notice period. The respondent maintains that the parties agreed on a one month notice period. The respondent submits that the complainant went absent without leave on Wednesday 12 September. The respondent states that by e-mail dated 11 September, the complainant sought confirmation that her position had been terminated and sought 1 months’ pay in lieu of notice. The respondent states that by e-mail and letter dated 17 September, it advised that the company had not let the complainant go and that her job was at risk of redundancy. The respondent contends that it again contacted the complainant by e-mail of 18 September confirming a miscommunication between the parties and asking the complainant to advise of upcoming client meetings so that the respondent can engage with those clients in the complainant’s absence. The respondent states that the complainant replied on 19 September and submitted a sick certificate for the period 19 September to 2 October and advised that her solicitor would make contact. The respondent submits that the complainant later submitted a sick certificate covering the period until 9 October. The respondent submits that it received a letter from the complainant’s solicitor dated 19 September suggesting that the respondent settle the matter with the complainant.

The respondent asserts that it replied to the complainant’s e-mail of 19 September by letter of 21 September. They again confirmed that the complainant’s employment was not terminated and advised that they considered the submission of the complainant’s medical certificates as evidence of the continuation of the ongoing employment. The respondent also stated that it would like to enter into a consultation process regarding the restructure the company potentially wished to implement and also invited the complainant to a welfare meeting on Monday 1 October. The respondent contends that a response was received from solicitors for the complainant dated 26 September seeking the complainant’s P45 with a termination date of 9 October and requested the respondent to desist sending correspondence directly to the complainant.

The respondent submits that at all relevant times it had no knowledge, actual or constructive, of any disability that the complainant had, it first became aware of the complainant’s alleged disability when it read it in the complainant’s WRC complaint form. The respondent states that the complainant never told the respondent that she suffered from stress and or anxiety or that she attended a course on mindfulness and stress reduction. The respondent maintains that had it been made aware of this disability, it would have been documented. The respondent submits that the complainant took very few sick days from work and it recorded no sick days from 2015 to 2017. It recorded a sick day from 22 to 23 March 2018 and the sick days at the end of the complainant’s employment. The respondent states that no sick days were taken in either period of employment relating to stress or anxiety. The respondent submits that on commencement of her employment in August 2015, the complainant completed an “Application for employment” which states no disabilities and no treatments being received. It also has no declaration of stress or anxiety. The respondent contends that one of the complainant’s colleagues discussed his issues of stress and anxiety with her but she opted not to discuss or share her own issues with her colleague.

The respondent submits that it is the complainant’s case that by telling Ms. C of her attendance at the course in the Turning Point Institute she was putting the respondent on notice of her disability. The respondent contends that it is noteworthy that the complainant alleges she advised Ms. C of her attendance at this course. Ms. C met the complainant in July 2018 and agreed to re-engage her as an employee. The respondent maintains that this is inconsistent with the complainant’s allegations that Ms. C knew of her alleged disability and discriminated against her. The respondent contends that the complainant advised Ms. C that she had an OGD (oesophageal gastro duodenoscopy) in St. Vincent’s Hospital regarding gastric issues sometime between 28 February and September 2017 when she was not an employee of the respondent company. However, it states that this was the extent of the respondent’s knowledge and it states that this certainly does not amount to evidence of a disability.

The respondent submits that it was not aware that the complainant’s aunt suffered from dementia. It was aware that the complainant was a point of contact for her aunt in the nursing home where the aunt resided. The respondent states that it knew this as it accommodated the complainant to attend the nursing home during working hours when the need required, such as when the complainant’s aunt had a fall. The respondent submits that it was not aware of the aunt’s condition. The respondent states that it is a stranger to any alleged disability suffered by the complainant’s mother.  In conclusion, the respondent denies the allegations that it discriminated against the complainant and also submits that there is no basis for the complainant’s claim of victimisation.  

The complainant is alleging discrimination on grounds of disability, gender and family status in relation to her conditions of employment and her discriminatory dismissal. She is alleging that she was subjected to harassment on grounds of her disability. She has also made a claim of victimisation.   I have considered all the evidence both written and oral presented to me.  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 in relation to her.  If she succeeds in doing so, then, and only then, is it for the respondent to prove the contrary. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of “sufficient significance” before a prima facie case is established and the burden of proof shifts to the respondent.  In deciding on these complaints, therefore, I must first consider whether the existence of a prima facie case has been established by the complainant.  In a previous Determination, the Labour Court, whilst examining the circumstances in which the probative burden of proof operates, held as follows –

"Section 85A of the Acts provides for the allocation of the probative burden in cases within its ambit. This requires that the complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. 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.”

  Disability is defined in Section 2 of the Acts:

‘‘disability’’ means—

(a) the total or partial absence of a person’s bodily or mental

functions, including the absence of a part of a person’s

body,

(b) the presence in the body of organisms causing, or likely to

cause, chronic disease or illness,

(c) the malfunction, malformation or disfigurement of a part of

a person’s body,

(d) a condition or malfunction which results in a person learning

differently from a person without the condition or

malfunction, or

(e) a condition, illness or disease which affects a person’s

thought processes, perception of reality, emotions or

judgement or which results in disturbed behaviour,

and shall be taken to include a disability which exists at present, or

which previously existed but no longer exists, or which may exist in

the future or which is imputed to a person;

I am satisfied that the complainant’s disability which is reactive depression and anxiety comes within the definition outlined above. However, having carefully examined all the correspondence in the instant case, while the complainant has argued that she was discriminated against on grounds of disability and/or disability by association in relation to her family members condition in relation to dementia, I find that the complainant has not established a prima facie case in this regard. Based on the evidence heard at the hearing, I find that while the complainant stated to Ms. C that she was undertaking a course on mindfulness this does not constitute putting the employer on notice of a disability.

The complainant has made a claim of harassment on grounds of disability.  Section 14A (7) of the Acts defines harassment as any form of unwanted conduct related to any of the prohibited grounds which has the purpose or effect of violating a person’s dignity and creating an intimidating, degrading, humiliating or offensive environment environment for the person. The complainant submits that she was sent a WhatsApp app message to a link regarding a TED talk on Alzheimer’s disease, I note that Ms. C also sent the link to other members of the team on the WhatsApp messaging system and she did so following a discussion they had on the issue at a tea break some time previously. While the complainant gave testimony that she was harassed following a work event, there is no evidence to corroborate or substantiate her version of events. In the circumstances therefore, I find that the complainant has not established a prima facie case that she was subjected to harassment on grounds of disability or disability by association.  

The complainant is claiming discrimination on the family status ground in relation to her conditions of employment. She has claimed that she was dismissed from her part-time role on 10 September 2018 as a result of her refusal to move to a full-time role.  I note from the contract drawn up by the Managing Director signed by the complainant a year previously that the hours of work stipulated were 9.00 am to 2.15 pm. Having examined the contract, I note that it does not state that the position was on a trial basis for a year and then subject to review.  I note that the respondent wanted the complainant to come back to a full-time role and this does not tally with the correspondence issued by the respondent stating that the complainant’s job was being made redundant and that she would be required to undergo a consultation process. In this regard, I find that the respondent was very disingenuous with the complainant.  I note that the respondent refused to give reasons in writing for terminating the complainant’s employment.  I also note that the respondent refused to engage or respond to repeated requests on behalf of the complainant for documentation and information including personal data on file and her P45 which caused her anxiety and distress.   

I consider this complaint is one of indirect discrimination on family status grounds. In a line of authorities commencing with Bilka-Kaulhaus v Karin Weber von Hatrz Case 170/84 {1986} ECR 1607, the ECJ has held that indirect discrimination arises where a requirement in relation to employment bears significantly more heavily on persons of one gender relative to that of persons of the other gender. According to the Employment Equality Acts, indirect discrimination occurs “where an apparently neutral provision, criterion or practice would put persons of a particular [ gender / family status ] at a particular disadvantage compared with persons of a different [ gender /family status ] unless that provision, criterion or practice is objectively justified by a legitimate aim, and the means of achieving that aim are appropriate and necessary.”   Based on the evidence heard, I find that the provision introduced by the respondent which would have required the complainant to work full time, amounts, prima facie, to indirect discrimination on grounds of her family status. However, a finding of discrimination only arises if the provision cannot be objectively justified. The onus of establishing objective justification rests on the respondent. (Was there a legitimate aim and were the means appropriate and necessary). The requirement here is for the employer to demonstrate that there were no alternative means, having a less discriminatory effect by which the objective in view could have been achieved. I am cognisant of the Labour Court decision in Inoue v NBK Designs Ltd. where the complainant contended that the requirement to work full-time is a condition of employment which disadvantages significantly more women than men and significantly more persons of her marital and family status than persons of a different marital and family status.    

The Labour Court held in the Inoue case:

                      “It would be alien to the ethos of this Court to oblige parties to undertake the inconvenience and expense involved in producing elaborate statistical evidence to prove matters which are obvious to the members of this Court by drawing on their own knowledge and experience.

                      Whilst there are many cases in which the unequal effect of a provision can be seriously put in issue and the true position can only be established by elaborate statistical evidence, the Court is satisfied that this is not such a case.”  

 In that case, the Labour Court stated “the complainant was unable to work full-time, not because she was a woman per se, but because she is the mother of a school going child and the primary carer of that child.”  It accepted that it is the reality in modern society that mothers are more likely to fulfil the role of primary carer of children than are fathers.

In the within case, the respondent did not give concrete examples of how the part-time job was not working out and, in my view, did not satisfy the requirements which are necessary to meet the objective justification test. The respondent stated that the sales representative job did not lend itself to a 25 hour week on the basis that there were occasions that the complainant had to work in the afternoons on different occasions to fulfil the needs of the role. It also maintained that client relations were better served and achieved when one person dealt with the customers (as opposed to the complainant having to hand work over to Ms. C when she was not there after 2.15 pm or when she was on leave). I find these reasons rather flimsy, I am also mindful that the part-time contract was drawn up by management who were aware of the complainant’s work as she had previously worked for the company on a full-time basis and following her departure from the company, the respondent as it stated at the hearing was aware of the complainant’s strong work ethic and on that basis requested her to return to work for the company. The respondent put forward no evidence to suggest for example that there were complaints on behalf of clients or indeed a loss of clients as a result of the complainant’s part-time arrangement. In my view, it was very disingenuous of the respondent to head hunt the complainant back to the company from a part-time role in another company which it was aware had suited her family needs and enabled her to fulfil her family responsibilities, to offer her a part-time role and then after a time, to make a decision to terminate that contract.

In the circumstances, I find that the respondent has not adduced evidence to demonstrate that the requirement for the complainant to do the job on a full-time basis was a legitimate aim and that the means to achieve the objective were appropriate and necessary.  The respondent did not consider alternative means or less discriminatory ways in which to allow the complainant to remain in employment. Accordingly, I find that dismissal of the complainant is prima facie indirectly discriminatory on the gender and family status grounds and the respondent has not rebutted the case.

The complainant has also made a claim of victimisation, in that, the respondent has continued to refuse to engage with her repeated requests to be provided with documentation and information as follows (i) confirmation of her dismissal (ii) her P45 (iii) her personal data under the Data Protection Act 2018 and (iv) requests for information dated 12 October 2018 and 13 November 2018. Having carefully examined this matter, I find that these actions do not constitute a “protected act” as envisaged under the section on Victimisation in the Acts and for that reason, I find that the complainant has failed to demonstrate a prima facie case in relation to victimisation.

I find that the respondent did not discriminate against the complainant on the disability ground in relation to her conditions of employment.

I find that the complainant was not subjected to victimisation within the meaning of the definition as laid down in the Acts.

I find that the complainant was subjected to indirect discrimination on grounds of gender and family status in the manner of her dismissal.

In considering redress, I find that compensation is the most appropriate form of redress in the circumstances of this case. In accordance with the case of Von Colson & Kamann v Land Nordrhein – Westfalen [1984] ECR 1891, I am mindful of the requirement that the sanction be “effective, dissuasive and proportionate.”  In accordance with my powers under section 82 of the Employment Equality Acts, I hereby order that the respondent pay the complainant €38,000 by way of compensation for breaches of the Act which represents one years salary. The award is redress for the infringement of the complainant’s statutory rights and therefore not subject to the PAYE/PRSI code.

Disability, gender, family status, discriminatory dismissal, harassment, victimisation, indirect discrimination