Complainant

Respondent

Parties

Abbey Ellis

Osg Restaurants Limited

Complainant

Respondent

Parties

Abbey Ellis

Osg Restaurants Limited

Representatives

N/A

Lauren Tennyson, BL                 Niamh Loughran, Beale & Co

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-00027724-001

15/04/2019

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

CA-00027724-002

15/04/2019

The complainant commenced employment as a Food Server with the Respondent on 1st September 2018 and the last day she attended work was on 26th October 2018. The complainant has highlighted two incidents which she alleges amount to discrimination because she was pregnant.

The Complainant alleged that the first incident which constituted discrimination occurred on 15th October 2018. She stated that she was in the bathroom on the phone to her sister and noticed that she was bleeding. She informed her shift manager Ms A, who was aware of her pregnancy, of the bleeding and asked to leave work. She alleged that Ms A prevented her from doing so because there was no one to cover her shift. She added that Ms A gave her a sanitary towel and told her that she could go to hospital later as there was nothing the hospital could do to save the baby if she was bleeding. She also stated that Ms A informed her that Ms A’s mother bled when she was pregnant with her and that she turned out fine. She stated that having spoken to her shift manager, Mr B, she was allowed go to hospital.

The Complainant said that the second discriminatory incident happened 11 days later, on 26th October 2018. She stated that she was told to take a break by her shift supervisor Ms C but claimed that she wanted to finish her jobs in the kitchen before doing so. She returned after the break and was spoken to by the restaurant manager, Mr D, who complained that she should do whatever she was told to do by Ms C. She stated that he then instructed her to lift boxes out of the freezer but she informed him that she could not do so because she was bleeding and pregnant. She claimed that Mr D then instructed her to only lift the bags but that she responded, stating that she would only be able to do so one by one. She alleged that Mr D then said, in front of two other colleagues, “ What have you got, handicapped hands”. The claimant stated that she was shocked and very upset at this comment but nonetheless finished the job she was doing before her lunch prior to leaving the premises. She stated that she has been out on medical leave since the second incident and that she has suffered from anxiety ever since, which requires ongoing treatment.

The Respondent highlights in its submission that the Complainant has made a complaint on family status grounds and points out that she has failed to establish that she was discriminated against due to her family status. It is also alleged by the Respondent that the Complainant has not submitted a claim of disability discrimination and cannot therefore bring a claim that she was not offered reasonable accommodation. The Respondent also states that the Complainant has failed to adduce any evidence that supports a claim for victimisation.

Ms A in her evidence denied that she prevented the Complainant from leaving the premises on 15th October. She firstly stated that she was not even working on the day in question and was only on the premises to pick up her laptop. She stated that the Complainant had made her aware of her pregnancy prior to this and had also told her that she was bleeding. Ms A stated that she was trying to comfort her and informed her that her mother had bled when she was pregnant with her and that she had turned out fine. Ms A also added that she asked the Complainant if she wanted to telephone an ambulance for her but that she assured her that someone was already on the way to collect her. She said that she remained with the Complainant and when her mother arrived to collect her, she walked her to the car. Later on that evening, Ms A exchanged a number of whatsapp messages with the Complainant, inquiring about her wellbeing and submitted these in evidence.

The Respondent also disputes the Complainant’s version of events in relation to the second incident. Specifically, the witnesses stated that she was only asked to do food tempering, which involved carrying small packages and tubes, none weighing any more than 1kg. Ms C also stated that she made a complaint to Mr D about the Complainant on the morning in question because she was not fulfilling her duties. It was also denied by the Respondent’s witnesses that Mr D asked her “ What have you got, handicapped hands”. Indeed Mr D stated that as he is not a native English speaker, he never used such a term and did not understand what it meant, until it was brought to his attention, some months after the incident, when he was notified of the complainant’s claim. The Respondent’s witnesses also stated that the complainant left the premises on the day of the second incident, 26th September, without informing a colleague or a member of the management team.

While I accept that the Complainant has incorrectly completed the complaint form, as highlighted by the Respondent’s representative, this is not a statutory document and it is clear from the narrative that her complaint relates to discrimination on the gender grounds and is therefore a valid claim under section 77 of the Employment Equality Act, 1998.

While there is a clear conflict of evidence between the parties, and particularly in the versions of evidence presented by Ms A and the Complainant, surrounding the events of 15th October 2018, I prefer the evidence of the Respondent. Specifically, I am satisfied from the tenor of the Whatsapp messages exchanged between Ms A and the Complainant on the evening of the first incident that there was no suggestion of any annoyance by the complainant towards Ms A, which would have been expected if Ms A had attempted to prevent her from leaving the workplace earlier that day. Indeed the tone of the messages is friendly and breezy. I also find it difficult to understand why the Complainant would agree to let Ms A walk her to her mother’s car if Ms A had not encouraged her to go to the hospital or indeed why Ms A would accompany her to the car if she did not wish her to leave work early.

There is also a conflict of evidence between the parties surrounding the second incident, which took place on 26th October 2018. While the Complainant has stated that she was asked to carry boxes despite being pregnant, this was disputed by two of the Respondent’s witnesses, Ms C and Mr D, who both said that she was only asked to do food tempering, which involved carrying small packages and tubes, none weighing any more than 1kg. I also note that all of the respondent’s witnesses, who the complainant alleged heard Mr D referring to her as having “handicapped hands” dispute that he used this term and I consider it credible that he did not understand the meaning of this reference until it was explained to him, given that he is not a native English speaker. Accordingly, I also prefer the evidence of the Respondent’s witnesses in relation to the second incident.

Moreover, I cannot understand why the Complainant failed at any stage to invoke either the grievance procedure or utilise the Respondent’s “Open Door” policy either around the time of the first incident or prior to departing the office on the 26th October without informing the relevant line manager. Both of these procedures are included in the crew handbook, which are referred to in the contract of employment that the Complainant acknowledged receiving.

In light of all of the above, I prefer the evidence of the Respondent in relation to the two incidents in question and therefore find that the claims are not well founded.

I have carefully considered all of the evidence that was laid before me both in advance of and during the hearing. For the reasons set out above, the complaints CA-00027724-001 and CA-00027724-002 are not well founded.