Complainant

Respondent

Anonymised Parties

An Employee

A Retail Entity

Representatives

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00020604-002

17/07/2018

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

CA-00020604-003

17/07/2018

The complainant commenced working for the respondent at his gift shop in Dublin on the 10th September, 2012. She was employed by the individual named as the respondent in this claim form, ADJ-00016437. She worked there until 15th May, 2018 when she was told the shop was closing due to financial difficulties. She was on maternity leave at the time. When the complainant got pregnant the respondent cut her hours saying that she shouldn’t be working. He called her on a few occasions to tell her not to come into work in her condition. He did the same to another pregnant girl but none of the other non- pregnant females or the one male employee were treated like that. When she was at work the respondent made her do all the heavy lifting. He would make her carry in heavy boxes on the days when the deliveries were made. At the end of the complainant’s maternity leave she e-mailed the respondent to tell him she was ready to come back to work. He replied by telling her that he had written to her in January, 2018 telling her that he had ceased trading in that shop and in one other shop at a different location. He said it was for a multitude of reasons including, high rents, low sales and staffing issues. He informed her that he was looking at a unit in Tallaght but that she should go on job seekers allowance in the meantime. The respondent has four shops. One closed before her maternity leave and one after. The complainant thinks that the one she worked in is still open. The respondent informed her that the shop is under new ownership and has a new name. She is doubtful.

Based on an e-mail exchange between he complainant and the respondent it is clear that the respondent was experiencing financial difficulties around the time the complainant was on maternity leave. He e-mailed her on the 14th May, 2018 setting out the reasons for the shops closure.

“I had send you a letter few months previous regarding L…. street and Andrews street on the 15 of January due to no staff and very low sales and a large hike in the payable of the rents and my own personal health issues I ceased trading in both locations as it was impossible to continue trading under all the very difficult circumstances”.

Based on the evidence adduced by the complainant I am satisfied that the respondent named in this complaint form, ADJ 16437 is the correct respondent for the purpose of these proceedings.

CA-00020604-002

I am satisfied that the complainant’s position in the respondent’s shop was made redundant. The exact date of the closure is not known. It is clear from the e-mail dated the 14th May, 2018 that the respondent, for a multitude of reasons could no long afford to keep the shop open, thus creating a redundancy situation. Due to the fact that the complainant was on maternity leave she was not informed of the redundancies until 14th May. The complainant was not paid her redundancy and was not asked to sign an RP50 form.

The complainant is entitled to redundancy based on the following:

Commencement date:           10/09/2012

Termination date:                   14/05/2018

Gross weekly pay:                   370.50

CA-00020604-003

The complainant states that she was discriminated against by the respondent on two grounds, family status and gender.

“family status” as defined by the Act, 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;

The complainant’s claim under the Family status heading is misconceived. She does not meet the criteria to establish a claim under this heading. She was not a parent or a person in loco parentis and was not a resident primary carer.

Gender:

6.—(1) For the purposes of this Act, discrimination shall be taken to occur where, on any of the grounds in subsection (2) (in this Act referred to as “the discriminatory grounds”), one person is treated less favourably than another is, has been or would be treated.

(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”),

Section 85A of the EEA 1998-2011 sets out the burden of proof which applies to claims of discrimination. It provides, in effect, that where facts are established by, or on behalf of, a complainant from which discrimination may be inferred, it shall be for the respondent to prove the absence of discrimination. The test for applying that provision is well settled and it requires the complainant to prove the primary facts upon which she relies in seeking to raise an inference of discrimination. It is only if this initial burden is discharged and I satisfied that the facts as established are of sufficient significance to raise a presumption of discrimination, that the burden of proving that there was no infringement of the principle of equal treatment passes to the respondent. The appropriate test for determining is that If the complainant does not discharge the initial probative burden required her case cannot succeed.

The Labour Court in Nevins, Murphy, Flood v Portroe Stevedores Limited [2005] 16 E.L.R. 282 confirmed the English position that discrimination can be conscious or sub-conscious and can therefore be difficult to prove.

“Discrimination is usually covert and often rooted in the subconscious of the discriminator. Sometimes a person may discriminate as a result of inbuilt and unrecognised prejudice of which he or she is unaware. Thus, a person accused of discrimination may give seemingly honest evidence in rebuttal of what is alleged against them. Nonetheless, the court must be alert to the possibility of unconscious or inadvertent discrimination and mere denials of a discriminatory motive, in the absence of independent corroboration, must be approached with caution.”

The complainant’s uncontroverted evidence was that the respondent’s attitude towards her changed when she got pregnant. Prior to her getting pregnant he had never called to tell her not to come in. Prior to getting pregnant he never said she shouldn’t be working. The other employees seven of which were females and one male, all of whom were not pregnant, were never told that they shouldn’t be working, were never asked not to come into work and did not have their hours reduced.  I am satisfied that the complainant was treated less favourably than her comparators and therefore I find she has established a prima facia case of discrimination. No evidence adduced to rebut the allegations.

In all the circumstances I find that the complaint is well founded.

I award the complainant € 5,000.00.

CA 20604 -02 The complaint is well founded. The complainant is entitled to a redundancy payment as set out above.

CA 20604-03 The complaint is well founded. I award the complainant €5,000.00