EDA221

SUBJECT:

1.Appeal of Adjudication Officer Decision No(S) ADJ-00013042- CA-00017160-002 CA-00018313-001

BACKGROUND:

2.The Employee and Employer appealed the Decision of the Adjudication Officerto the Labour Court in accordance with Section (83) (1) of the Employment Equality Acts, 1998 to 2015. A Labour Court hearing in a virtual setting took place on 26 January 2022. The following is the Determination of the Court:

DETERMINATION:

Background

This is a series of appeals of an Adjudication Officer’s Decision under the Employment Equality Acts 1998 to 2015, ‘the Acts’.

Ms. Vereker, ‘the Complainant’, worked for Holden Plant Rentals Ltd. ,’the Respondent’ from March 1995 to February 2018. She was employed originally as an Office Manager and was General Manager when she ceased in the employment. She was paid an annual salary of €70,000 plus bonuses and was supplied with a company car and mobile telephone.

In June 2016, the Complainant advised Mr. Paul Holden , the owner of the Respondent company, of her fourth pregnancy. Her due date was 2 January 2017. She advised the company Financial Controller in December 2016 of her intention to avail of her full maternity leave entitlements, including unpaid leave. She gave birth on 28 December 2016.

The Financial Controller left the employment of the Respondent in May 2017 . There was correspondence by text between the Complainant and Mr. Holden regarding her date of return from maternity leave in respect of which there are different interpretations by each party. The Complainant alleges, and the Respondent denies, that she was put under pressure to return from maternity leave.

Another manager was engaged by the Respondent. It is the Respondent’s position that this manager’s role was to be in respect of the group of companies that includes the Respondent company. It is the Complainant’s contention that her role was re-assigned to this other manager.

The Complainant returned to work in September 2017. The Complainant contends that she was subject to belittling criticism when she returned. This is denied by the Respondent.

After a number of alleged incidents, 6 days after her return to work, the Complainant went on sick leave. She lodged a grievance and the manager, whose appointment is in contention, conducted an investigation. The grievance was not upheld. An appeal was offered to and accepted by the Complainant. The parties undertook mediation. This did not resolve the matter. The Complainant resigned her employment.

The Complainant lodged a series of complaints under the Acts with the Workplace Relations Commission.

The Adjudication Officer found that the Complainant had been discriminated against by the Respondent on grounds of gender and family status due to pregnancy. An award of €53,000 was made. The Respondent appealed this Decision to this Court. The Complainant appealed the quantum of compensation awarded.

The Adjudication Officer found that the Complainant had been victimised by the Respondent, contrary to the Acts, for having made a complaint under the Acts. An award of €8,000 was made. The Respondent appealed this Decision to this Court. The Complainant appealed the quantum awarded.

The Adjudication Officer decided that a claim of harassment of the Complainant by the Respondent, contrary to the Acts, was not well founded. The Complainant appealed this Decision.

The Adjudication Officer decided that a claim of constructive discriminatory dismissal was not well founded. This was appealed to this Court by the Complainant.

An issue was raised by the Respondent that the Complainant’s appeal was stamped as received by the Labour Court on the 43^rdday after the Decision and that it was, therefore, outside of the 42 days allowed for appeal in the Workplace Relations Act 2015. Upon further investigation, it was established that the appeal had been received by the Court in electronic format prior to midnight on the 42^ndday. The Court concluded that the appeal had been received in time.

The Respondent’s representative raised a query regarding the numbering in the findings of the Adjudication Officer. The Court indicated that it was satisfied that the Decisions being appealed were clear and unambiguous.

Each of the issues that are the subject of separate appeals are dealt with separately below in the summary of arguments made by the respective parties and in the relevant extracts from the Acts, with the exception of the appeals regarding alleged discrimination on gender and family status grounds as these were stated by the Complainant’s representatives to be based on the same set of facts related to alleged acts of discrimination due to pregnancy.

Details of witness evidence are recorded in accordance with the sequence of evidence given.

Summary of Complainant arguments regarding alleged discrimination on grounds of gender and family status

The Complainant was discriminated against by the Respondent due to pregnancy.

The Complainant had a long and close working relationship with the Mr. Paul Holden, the owner of the Respondent company. They were friends and close colleagues.

On her three previous pregnancies, the Complainant had not availed of her full, legal entitlements to maternity leave. Her fourth pregnancy was the first occasion that she had indicated an intention to do so. This resulted in a complete change of attitude towards her by Mr. Holden.

There was a text exchange between Mr. Holden and the Complainant, when the Financial Controller was leaving the employment, regarding the date of the Complainant’s return to work.

It is clear from this correspondence that pressure was being brought to bear on the Complainant not to avail of her legal entitlements, including asking the Complainant if she needed the leave that she was proposing to take. Copies of the chain of text messages were provided to the Court. This culminated in a brusque demand to the Complainant that she return to work on 1 August, well in advance of the date of return to which she was legally entitled. The Complainant, as a result, did not avail of her full entitlement, took only 5 weeks of her unpaid leave entitlement and returned to work on 4 September 2017.

When the Complainant returned to work she had been demoted, she was told that she would be reporting to Ms. Marie Aldridge, and her tasks had been diminished. It is a clear entitlement under the Acts for any woman returning from maternity leave to be allowed to return to her previous job as made clear in a series of cases quoted to the Court.

When she returned, the Complainant was ignored by Mr. Holden, shouted at and, most inaccurately, accused of under- performance. She was stripped of her role at a staff meeting.

When the Complainant raised her concerns, Ms. Aldridge, most inappropriately, was appointed to carry out what transpired to be a totally inept investigation of the Complainant’s grievance and in her conclusions blamed the Complainant for her own failures. There is no requirement in the Acts for the Complainant to exhaust any appeals arranged by the Respondent before seeking to vindicate her rights under the Acts.

Even if it was accepted, and it is not, that Ms. Aldridge was appointed to a role in the group of companies as alleged by the Respondent, the Complainant was never afforded the opportunity to apply for this role. In any event, the Respondent is the main company in the group and the other companies are, in many respects, just holding companies.

It is a well accepted principle in pregnancy related cases that where a pregnant woman is subjected to less favourable treatment, it is for an employer to prove that such treatment is unrelated to the pregnancy. As the Respondent cannot do so, it is clear that the Complainant’s less favourable treatment was related to her pregnancy and that this constitutes discrimination on grounds of both gender and family status.

Summary of Respondent arguments on the alleged discrimination on gender and family grounds

After 22 years working for the Respondent, the Complainant made a decision regarding her relationship with her employer after only six working days following her return from maternity leave on 4 September 2017. She never returned to work after 11 September 2017

The Complainant then lodged a grievance and gave no direction to the appointed investigator, Ms. Aldridge, as to the exact nature of that grievance.

It is not true to say that the Complainant was demoted. She never worked with Ms. Aldridge, who only came to work full time for the Complainant in October 2017, following the last day in which the Complainant attended work for the Respondent.

In any event, the reporting relationship is a matter for the employer, an employee is not entitled to dictate to whom they should report and the Complainant never gave any chance for a working relationship between Ms. Aldridge and herself to develop. Ms. Aldridge was appointed to oversee the group of companies. There are 52 employees in the group, of whom 18 work for the Respondent company, so it is inaccurate to describe the other companies as holding companies.

It is noteworthy that the Complainant chose to resign and to pursue a case for an alleged constructive discriminatory dismissal rather than avail of the appeal to the outcome of her grievance by an outside company that was offered to her. Her conclusions and actions were premature.

It is clear from the exchange of texts, about which the Complainant complains, that the Respondent was seeking nothing more than clarity regarding a return date from maternity leave.

It is not true that the Complainant was assigned menial tasks on her return. She was afforded the chance to get used to being back in her work. She was not asked to do anything inappropriate for her role.

There were no changes made to the Complainant’s terms and conditions of employment upon her return from maternity leave.

Summary of Complainant arguments regarding the claim of harassment

The Complainant was subjected to unwanted conduct due to her pregnancy. This first arose prior to her maternity leave, outside of the cognisable period, when the owner of the Respondent told the Complainant and her sister, both of whom were pregnant that, ‘I thought I was out of the woods with you two’. It is contended that there was continuity between the time of this comment through the period up to the date of the subsequent complaint.

A week after the Complainant returned to work, Mr. Holden, in a private meeting with the Complainant told her, with unfounded insinuations regarding her performance, that he was horrified at what he had discovered while she was on maternity leave. He had also accused her of being interested only in her company car.

The Complainant was then denied a fair and reasonable investigation of her legitimate complaints, which resulted in an outcome that was not reasonable. The deficiencies of that process cannot be cured by an appeal, a process which is not required in law anyway.

Summary of Respondent arguments regarding the claim of harassment.

The comment referred to regarding pregnancy was made to two employees, one of whom remains an employee of the Respondent. It was a light hearted comment of no great significance.

An issue raised with the Complainant at the meeting on 11 September 2017 regarding problems discovered by the Respondent while the Complainant was on maternity leave did not involve any allegation directed towards the Complainant regarding her work performance. There was no allegation that the problem was her responsibility.

The Complainant was given an opportunity to have her grievance investigated. If she felt that any aspect of that process or outcome was inappropriate, she had a remedy in taking up the offered appeal to an outside party. In fact, after some time, she indicated agreement to appeal. Graphite HR were appointed to conduct this appeal. This was overtaken by a failed attempt at mediation, following which the Complainant resigned without ever having appealed.

Summary of Complainant arguments regarding alleged victimisation

The victimisation of the Complainant occurred because she made complaints of discrimination.

The acts of victimisation relate to the Complainant’s company car and company mobile telephone. Both acts arose after the Complainant raised a grievance on 31 October 2017 and were acts of victimisation ‘for’ having made a complaint.

In November 2017, the Complainant was contacted by Mr. Mark Byrne of the Respondent company to say that they wanted to take possession of her company Mercedes car for ‘a winter check’. This had never happened previously. The Mercedes was never returned to the Complainant. She was given a lesser quality Renault car as a replacement.

The Mercedes had passed its NCT. There was no reason for it to be taken for a check.

This occurred despite Mr. Holden having previously emphasised the importance for the company’s image and status for the Complainant to have a top quality car.

The replacement car was faulty and, subsequently, something dropped out of the engine area.

The company that operates the Respondent’s fleet of vehicles is owned by Mr. Holden

With regard to the telephone, attempts at mediation between the parties broke down on 7 February 2018 and on the following day the Complainant’s telephone was cut off. The Complainant had used this number for 25 years. She had no other mobile telephone. The Complainant had been out of work since the previous September and the sheer proximity of the breakdown in mediation attempts and her mobile telephone being cut off establishes a ‘prima facie’ case of victimisation.

Summary of Respondent arguments regarding the claim of victimisation

The Respondent could not have victimised the Complainant with regard to the mobile telephone as the complaint with the Workplace Relations Commission was lodged on 30 January 2018 and only notified to the Respondent on 20 February 2018. The Complainant alleges that her telephone was cut off on 8 February 2018 i.e. before the Respondent was aware that a complaint under the Acts had been lodged.

With regard to the issue with the car, it was a decision of the fleet company to check the Mercedes, it was not a decision of the Respondent. It is unreasonable to expect that the fleet would have a spare Mercedes to be provided whenever a company car was required to be checked.

The Complainant was provided with a car that the fleet company would say was checked prior to being given to the Complainant and was in excellent condition, when released to her. However, when it was returned, the car had visible damage and showed clear signs that it had left the road because of grass and soil on it.

With regard to the telephone, the Complainant says that it ceased to work on 8 February 2018. She resigned on 16 February 2018. No opportunity was provided for the Respondent to deal with any issues regarding the telephone.

Summary of Complainant arguments regarding the alleged discriminatory constructive dismissal

As outlined in respect of the other claims under the Acts, there was a chain of unreasonable and discriminatory acts by the Respondent towards the Complainant that left her with no other option but to resign from her employment. These incidences of discriminatory behaviour fed into the reasonable decision of the Complainant that she could no longer work for the Respondent.

There had been a complete breakdown in trust and confidence between the parties due to the behaviour of the Respondent. The investigation of the Complainant’s grievance was totally inadequate and the outcome was unreasonable, resulting in the Complainant losing faith in the possibility of her concerns being addressed in a fair manner.

There is no obligation under the Acts for the Complainant to pursue her grievances to an outside appeal. The processes were ad hoc and did not inspire confidence.

The act of victimisation by the Respondent in removing the Complainant’s telephone after she had tried unsuccessfully to resolve her difficulties was the cause of her final lack of confidence.

Summary of Respondent arguments regarding the alleged discriminatory constructive dismissal

The Complainant had a duty to exhaust all avenues available to her to resolve her grievances before resigning. She did not do so. Despite indicating a willingness to avail of an appeal to an independent outside body on 14 February 2018, the Complainant resigned on 16 February 2018, by which time the services of Graphite HR had been engaged to conduct the appeal.

No explanation was provided for this change of heart. A subsequent letter from the Complainant’s solicitor referred to the appointment of this company as being ‘too little, too late’. It is not clear why a process seen as reasonable on 14 February 2018 went to being unreasonable on 16 February 2018.

It is not the case that the Complainant objected to the particular outside body appointed to hear the appeal, (a company that shares a premises with Peninsula, the Respondent’s representative) but, rather, that she decided not to participate in any appeal process. The Court must ask what changed in the space of those very few days?

Witness evidence

Ms. Sinead Vereker

Ms. Vereker is the Complainant.

The witness told how she had started to work for the company as a teenager. She had been promoted in time to General Manager. Her duties included all aspects of the company business. She reported directly to Mr. Paul Holden, the owner of the business. They had an excellent and close business and personal relationship.

They were friends and they had total trust in each other. They had attended meetings together all over the country and they had close ties such that they were like family ties.

The witness described how she had taken no more than a few weeks off during her first two periods of maternity leave. On her third maternity leave, the Respondent had employed Ms. Catherine Staunton to take care of finances and the Complainant had taken six months’ maternity leave but had taken telephone calls every day throughout her leave.

Throughout her time in the company, the Complainant had active involvement in all aspects of all companies in the group of companies. The majority of work came through Holden Plant Rentals and employees were paid through this company. The other companies were set up mainly to get better insurance quotes.

The Complainant stated that when she had advised Mr. Holden of her fourth pregnancy she had done so at the same time as her sister, who was an employee of the Respondent, had also advised Mr. Holden that she too was pregnant. Mr. Holden had said that ‘I thought I was out of the woods with you’. At the time she took this to be in jest but in time she saw more intent in the words.

In December 2016, the witness told Ms. Staunton, Financial Controller of the Respondent, that on this occasion, she was taking all of her maternity leave entitlements, including her right to unpaid leave. She wanted to get her eldest child settled in Secondary School from 4 September 2017. Her child was born on 28 December 2016.

In February 2017, the witness met Mr. Holden at a funeral and they arranged to meet up the following week. At the meeting she told Mr. Holden that there was a noise in her company Mercedes car. Mr. Holden said that the car needed to be up-dated anyway.

Shortly afterwards, Ms. Staunton gave her notice. The witness asked Mr. Holden if she could do anything to help. Mr. Holden said ‘no’ but the witness felt that he was a bit ‘off’ with her.

Ms. Staunton left and the witness and Mr. Holden exchanged texts about her date of return to work. The witness said that it was clear that Mr. Holden knew of her intentions as conveyed to Ms. Staunton. In one text he asked her if she needed to take the leave that she was proposing to take.

When she tod him about her child minding issues he texted ‘Return 1 August as due’. When the witness returned to work in September, at a meeting on 11 September she says that Mr. Holden said to her ‘You were asked to come back and you did n’t’. The witness said that she was shocked at this. She said that she was prepared to help while on leave but that Mr. Holden wanted her to do what she was told. The witness outlined that she went through a period of ill health before returning to work and that Mr. Holden did not show any human reaction to this.

In July 2017 the witness contacted Mr. Holden to ask if he wanted her to help out. He said ‘no, we have Marie Aldridge now’. He asked the witness if she knew Ms. Aldridge and told her that she had started work. The witness said that she knew she was in trouble as she had always conducted the interviews for staff. She confirmed that she had not been made aware of any vacancy for which she could apply.

The witness felt belittled and surplus to requirements. In a subsequent telephone conversation with Ms. Vicky Holden, daughter of Mr. Holden and an employee of the Respondent company, regarding the witness’ annual leave she was told that there were ‘big changes around here’ and that the witness would ‘have to come back to work first’ and that she should talk to Mr. Holden.

The witness had never before been required to return to work before taking leave and she understood that her role was changing. She said that she rang Mr. Holden five times but never connected. She believed that her number was blocked. Despite passing a message to him for him to call her back, he never did so.

The witness said that she obliged Mr. Holden by taking only 5 of her weeks of unpaid leave rather than the 16 to which she was entitled. She returned to work on 4 September.

On 4 September at 08.55, the first thing that Mr. Holden said to her was that ‘we need a meeting’. At the meeting he told her that there were ‘big changes around here’ that he had been concerned that payments were not being monitored, that Ms. Aldridge had started to work one day per week and would be in full-time in October and that some of the accountancy work was being brought ‘in house’.

He told her that one of her, named, colleagues ‘had to go’. When the witness asked if he wanted her to speak to the colleague, he said ’no, she won’t be able to stand the pressure’. He told her that Ms. Aldridge would be going around the office to see what everybody was doing. The witness believed that she was being told that Ms. Aldridge was being brought in to do the job of the witness.

On 5 September Mr. Holden asked the witness what she was doing? When told she was working on invoices, the witness said that Mr. Holden said that this was a ‘fxxxxxg waste of time’ and told her to work on the month ends, something that the witness said was impossible so soon after the start of a month. When told that the witness’ car needed an NCT, the witness said that Mr. Holden told her in what she said was an aggressive, dismissive and intimidating tone in front of other staff that there were more important things.

On 6 September, the witness said that she told Mr. Holden about an issue regarding prices of brushes with Galway County Council to which he had replied ‘that is the price of the fxxxxxg brushes’ and told her to ‘sort it out’.

He then said that he would sort it himself and called another employee to ask them to resolve the matter. Later when the witness was at the computer used for the Revenue on Line service, Mr. Holden told her to ‘get back to your own desk’. He later asked her if she had completed the work , which she had to do manually. The witness said that she felt that she had been treated like a child.

On 7 September, when the witness told Mr. Holden that independent valuations were needed by the bank, he scribbled ‘zero’ on the forms and said that ‘they’ll fxxxxxg accept ours’. Later, Mr. Holden asked if the matter was sorted and she reminded him of the earlier conversation, to which he replied by telling her to ‘sort it out’. The bank later confirmed what she had advised.

On that day also Mr. Holden excluded the witness from a meeting with the ESB that she would have expected to attend and asked a colleague, in front of the witness, to accompany him. She was advised also that day that the NCT test for her company car had been arranged for a Saturday morning. In her view this was a deliberate attempt to create awkwardness for her.

On 8 September, the witness said that Mr. Holden asked for information and when told that he had it already, he replied ‘I’ll fxxxxxg do it myself’. When the witness asked what she should do, she said that Mr. Holden told her to ‘Do whatever you like’. Later that day, Mr. Holden asked to speak to all staff except the witness.

On 11 September, the witness said that Mr. Holden told her that the witness was ‘back a week and things are not working for me’. She said that he told her that Marie Aldridge was coming in to oversee everyone and that he was horrified at what had been discovered while the witness was on maternity leave. When the witness queried this, Mr. Holden said to ‘leave it’.

He asked her how often she had called the office for an up-date while she was on maternity leave? She replied that she had called approximately four times. He accused her that when they had met during her leave, she was only interested in her car. The witness said that she was disgusted by this and asked if, after 22 years of service to the company, this was what he really thought? Mr. Holden confirmed this and confirmed also that their relationship had changed.

The witness said that Mr. Holden told her that she would be reporting to Ms. Aldridge and accused her of having done nothing for the company. He reminded her that she was the highest paid employee and he asked, ‘For what?’ and ‘What do you have to offer this company? She replied ‘How dare you?’ and he said to ‘Just leave it’. When she said that he had no right to say these things, he told her that he was not here for a row and that ‘You were asked to come back in August and you did n’t. That is not how things work around here’ He then went on to praise the contribution of his daughter, Vicky Holden and Mr. Mark Byrne.

The witness said that Mr. Holden then met all the staff and told them of the changes in organisation. He asked the witness to do some accounts work. When she asked a colleague for advice on this work, her colleague told her ‘I can’t. I need this job’. The witness said that she went home at lunch time and broke down. When she returned, Mr. Holden did not speak to her for the rest of the day.

The witness said that she was distraught, that performance issue had been insinuated but not particularised, that there were no issues ever with her work and that she could have responded to any matters if any had been raised.

With regard to the argument that , she says, was made subsequently that Ms. Aldridge was coming in to head the group of companies, the witness said that the Respondent company was the main part of the group and that she had always done group-related work. The Revenue on Line work referred to in her evidence was group related.

The witness said that everything she did after her return was treated as a waste of time. She denied that she needed time to get back into her work and noted that she had thrown herself back into her work immediately upon returning from previous periods of maternity leave. She felt that Mr. Holden had changed his mind about her and his attitude towards her.

This left her very distressed as there were huge personal and family connections. When, subsequently, she advised Mr. Holden that she was taking sick leave, he had replied by text simply saying ‘Sound’. This really upset her.

When the witness raised a grievance, Ms. Aldridge was appointed to hear it. The witness had expressed her misgivings about the appropriateness of this but had gone along with it, despite feeling that it was ‘belittling’. The witness stated that her grievance was not upheld, despite the evidence.

The witness outlined how her company Mercedes car was subsequently recalled for a ‘winter health check’, something that had never happened previously. She was given a replacement Renault car.

The Mercedes was never returned to her. On 8 December, the witness said that ‘something’ fell out of the bottom of the Renault car and she brought it to her father-in-law’s yard, where it was retrieved by Holden employees. In response to suggestions that the checks etc were matters for the fleet company rather than the Respondent, the witness noted that the fleet company was owned by Mr. Holden and she said that he was orchestrating these events.

The witness said that she participated in an attempt at mediation. The day after this mediation had failed, the witness said that her company mobile telephone was cut off.

The witness described the sequence of events as the worst thing that had happened to her in her life and said that she had put her job ahead of her family and the needs of her new-born children.

In cross examination, the witness was asked about Spectrum Investments Ltd., Irish Machinery Options Ltd., Coolmeen Farms Ltd and Coolmeen Horse Training Ltd. The witness stated that some of the companies were set up to assist with insurance quotes. She was not familiar with the latter two companies, which the Respondent’s representative said were part of the relevant group.

With reference to the text correspondence with Mr. Holden while she was on maternity leave, the witness said that she knew that he was aware of her planned return date because she had told Ms. Staunton.

She denied that that the text regarding a 1 August return was simply due to a different calculation of her return date. When it was put to her that a requested return on 1 August was not unreasonable, the witness noted that she had already compromised by agreeing to return on 4 September without taking her full entitlement. She noted also that she had said that if anything needed to be done, Mr. Holden should just let her know.

When asked why she assumed that because she was unable to connect with Mr. Holden by telephone she had made the assumption that he had blocked her number, the witness said that she had tried 5 times to contact him and that when she contacted Ms. Vicky Holden she had been told that she had to return and talk to Mr. Holden.

When it was put to her that Ms. Aldridge’s role was in respect of the group of companies, the witness stated that Ms. Aldridge was being brought in to do the witness’ job, which was to oversee the running of the office.

When asked what tasks she had been required to do on her return from maternity leave that were not within her role, the witness said that everything she did was stated to be a ‘fxxxxxg waste of time’. When it was put to her that no tasks were beneath her role, the witness said that Mr. Holden had told her that he did not care what she did.

When it was put to the witness that work had to be re-distributed while she was on maternity leave and that a good employer would give time for a returnee to settle in, the witness reiterated that she did not need such time and had shown this previously.

The witness accepted that her pay had not been cut and that her working hours and title were unchanged but re-stated that she had been told that somebody else was being brought in to do her job. She noted that she used to leave early on one evening per week but was afraid to do so when she returned from maternity leave.

The witness accepted that she had not worked alongside Ms. Aldridge. When asked why she objected to a new role being created, the witness said that the role of overseeing the office was her job.

With regard to the grievance investigation carried out by Ms. Aldridge, the witness noted that Ms. Aldridge had found her grievance to be ‘unsubstantiated’ without the witness ever being given Mr. Holden’s version and that she was only given the interview notes subsequent to the conclusion being reached.

It was put to the witness that she was offered an appeal on 15 December and given 5 days to respond. She had asked for, and was granted, more time and had indicated agreement to pursue an appeal ‘under protest’ on 9 January.

It was put to her that Graphite HRM were appointed and that she appeared to be suggesting that the period from 9 January to her resignation on 19 February was too long. The witness noted that mediation had occurred in between and that she felt by the time of her resignation that it was too late to resolve her issues, 5 months since she had worked in the company.

It was put to the witness that her solicitor wrote to the Respondent on 14 February seeking clarification regarding her appeal but that she resigned on 16 February. It was put to her that she had been afforded as much time as she needed but that she had decided that two days was long enough for the Respondent to consider her solicitor’s letter before she resigned.

The witness said that she had thought long and hard over those few days, that the last thing she had ever wanted was to leave the company but that she felt she could not go back.

The witness said that the replacement car she was given was faulty and she believed that to be deliberate. She denied that she had crashed the car. When it was put to her that the car showed signs of having crashed, the witness said that it had been dragged from her father-in-law’s yard and her father-in-law had remarked on the rough way that the vehicle had been treated.

When asked why she had not reported the scale of damage to the car, the witness said that it had been pulled down the road by an employee of the Respondent.

In response to questions from the Court, the witness said that she had first learned that Ms. Aldridge was joining the employment when she had asked Mr. Holden if he wanted her to come in from maternity leave for a few days per week in August and he had told her that it was not necessary as Ms. Aldridge was joining. She said that she was not told of Ms. Aldridge’s role at that stage and first learned that she was to report to Ms. Aldridge when told this by Mr. Holden in a belittling tone on 11 September. She said that Ms. Aldridge came in for one or two days per week in September.

The witness said that she did not appeal the outcome of her grievance because she had lost all trust in her employer. There had also been a loss of privacy as people knew her business. She had also lost her car and telephone by then.

The witness said that Mr. Holden had accused her of under-performance but when asked to explain had simply told her to ‘leave it’.

The witness said that the post filled by Ms. Aldridge had never been advertised and that she only learned that the post’s title of ‘Group General Manager’ some 5 months after the event. However, she said that this post was more senior than her post and that on 11 September she had been given duties done previously by a lower ranked colleague.

The witness said that when her role changed as she progressed in the company, she had never received any written notification of her new terms and conditions.

In re-direct questioning, it was clarified that the Complainant had made a further complaint of victimisation in April 2018, after issues had arisen regarding her telephone.

Ms. Marie Aldridge

Ms. Aldridge is the former Group General Manager of the group of companies, that includes the Respondent company.

The witness described how she had been in an officer role in her previous employment when she saw a role of Accounts Manager advertised by the Respondent company, for which she had applied.

It transpired that this was a junior admin. role, for which she was over-qualified, but a few weeks later Mr. Holden had called her and said that he had a job for her. She accepted an offer and was paid a salary of €50,000 p.a.

The witness said that Mr. Holden needed assistance with his group of companies. She went in on days that she was free in August and September on a voluntary basis to learn about the job and she started employment in October.

The witness said that, prior to her taking up the role, she had no contact with the Complainant.

The witness said that her role was to automate and bring the 6 or 7 companies up to date as they were largely run by telephone with little automation.

Her role brought her into touch with one or two customers but her work was largely with Account Managers. She only became involved with tender applications when it was clear that the Complainant was not returning, at which stage she provided assistance.

The witness said that she became involved in dealing with the Complainant’s grievance in mid November at Mr. Holden’s request. She described herself as the best fit for the process as there was nobody else in the company who could undertake the task because other managers were on the logistics side of the business and most of the admin. staff were related to one or other of the parties. She said that she was impartial.

The witness said that there was no corroborating evidence to support the allegations. She said that they were hearsay consisting of ‘he said, she said’, so there was no basis to substantiate them.

The witness was referred to an email from the Complainant regarding her concerns that notes of a meeting with the witness were not accurate and in which she the hand-written notes of the accompanying note-taker. The witness said that these were provided in response to the request.

The Complainant had then written with substantial alternative interpretations. The witness was asked if she considered these to be new or repeating allegations, to which she replied that they were how the Complainant felt. The witness said that she took account of this correspondence in assessing the grievance.

The witness said that she could not recall if the Complainant raised the issue of victimisation.

The Complainant raised concerns after the witness had given her finding because the Complainant had not been given the notes of a meeting with Mr. Holden. When asked why she had not done so, the witness said that these had not been requested previously by the Complainant and that they were given when requested.

The witness said that the Complainant was offered an independent appeal but no response to this offer was ever received by her.

The witness said that she had never managed the Complainant. She said that she had no awareness of any subsequent issue regarding the Complainant’s telephone.

The witness said that following the Complainant’s resignation, she was removed from the process, which was taken on by Mr. Holden.

Under cross examination, the witness was asked if the Complainant had been demoted in being required to work under the witness? In reply, she said that the Complainant would have reported to her regarding just one company in the group.

When it was put to the witness that Holden Plant Rentals held 95% of the Group’s reserves in the 2017 accounts, the witness said that she could not speak to that but she accepted that it was the biggest company in the group.

The witness accepted that her e-mail address was a Holden Plant Rentals’ address but stressed that she dealt with the group.

The witness said that she had been hired by Mr. Holden as the Group General Manager. When asked if she had ever clarified her role with the Complainant, the witness said that she had never been asked to do so and, if asked, she would have given details.

It was put to the witness that the handling of the Complainant’s grievance did not comply with WRC guidelines and that she could not have been impartial as she, herself, was part of the subject of proceedings. The witness said that it was standard process to deal with such matters internally in the first instance.

When asked where in a company Grievance Procedure, it was stated that this stage had to be internal, the witness said that this was general company policy.

The witness accepted that the Complainant had raised the question of impartiality at the outset of proceedings. In response to a query as to whether a public bar was the appropriate place to meet the Complainant to discuss her grievance, the witness said that there had been no objection and that the area concerned was secluded.

It was put to the witness that her outcome report gave no analysis of the allegations and that there was no noted assessment of evidence and conclusions beyond two lines and also that, in such cases, there rarely was physical evidence. The witness said that she could not say as she did not have experience of dealing with such cases.

She confirmed that she had not conducted a previous investigation of this sort but said that she had followed a process and that all of the evidence was hearsay.

When it was put to the witness that the Complainant was on sick leave and was not able to acquire physical evidence, the witness said that the Complainant had never offered any.

When asked why she had never taken statements from other parties, the witness said that those in the office were related to one or other of the parties and that the Complainant wanted privacy.

The witness said that she did what was required by the process and made her decision on what was provided. She rejected the description of her investigation as a ‘whitewash’. She did not accept that giving Mr. Holden’s statement to the Complainant after the witness had made her finding was unfair and reiterated that Mr. Holden had requested the Complainant’s statement, while the Complainant had not requested that of Mr. Holden.

The witness stated that Mr. Holden had never directed her on how to conduct her investigation and said that she had received HR guidance from professionals. They had advised also to give the Complainant 5 days to decide if she wished to appeal.

In response to questions from the Court, the witness said that she had not discussed reporting relationships with Mr. Holden prior to joining the employment.

The witness accepted that, from her job title, it might be assumed that the Complainant would report to her in respect of one of the companies in the group and accepted when it was put to her that she was placed between the Complainant and Mr. Holden. She stressed that the work, responsibilities and conditions of the Complainant were not changed.

The witness accepted that it might be due to a lack of experience that she never thought to re-convene meetings with the Complainant when she made new points.

When asked if she understood that the Complainant believed that the witness had displaced her, the witness said that she did understand but that the Complainant was incorrect.

The witness accepted that she had not told the Complainant that Mr. Holden’s interview was available for her to read.

When asked if she had any concern about investigating her superior, Mr. Holden, the witness said that she did not and that Mr. Holden wanted the Complainant to return. She accepted that she was in a difficult position but said that there was nobody else available internally.

The witness said that she had not realised the extent to which her own appointment was part of the Complainant’s grievance and, had she known so, it would have impacted her view regarding conducting the investigation but, given the nature of the company and the family relationships within the company, she felt that she had to conduct the investigation.

The witness said that she wanted to provide re-assurance so that the Complainant could return.

It was put to the witness that she must have understood that there would be a reaction to her own insertion into the management structure between the Complainant and Mr. Holden. The witness said that she did not consider that to be a difficulty and that it was likely that the Complainant would report to her on a narrow range of operational matters relating to the group but that the Complainant’s role and functions would not have changed.

Mr. Paul Holden.

Mr. Holden is the owner and Managing Director of the Respondent company.

The witness said that the Respondent company provided vehicles and equipment to Government Departments and agencies and to Local Authorities and also provided fleet management for some Government bodies.

The witness said that he had known the Complainant for a long time, there were close family connections, the Complainant had baby sat his children and worked in his wife’s shop when she was in school and had joined the Respondent company when she was young. Some of the Complainant’s sisters worked for the witness and her father and brother had done building work for him.

Therefore, when the Complainant and her sister had both told him they were pregnant in June 2016, he had congratulated them and engaged in jokey banter with them when he had said something along the lines of thinking he was ‘out of the woods’ with them regarding pregnancy.

The witness said that he had no involvement with the Complainant’s maternity leave and said that she would have come back for a day or two while on previous maternity leave very much ‘off her own bat’ and would have taken other time to compensate.

The witness said that the Complainant looked after all aspects of the business. He said, ‘She was the company’. She managed everything in the business. She looked after all employee contracts and remuneration, including her own. She dealt with all contracts of remuneration.

The witness described how he bumped into the Complainant at a funeral, while she was on maternity leave and the Complainant had suggested that they meet. They met for lunch. At the lunch, the Complainant mentioned an accident in New Ross in the company car.

The witness was a bit alarmed as this had not been reported. He had a look at the car. The tyres were bald and he arranged to have it picked up. At the time Renault was the major supplier to the fleet and the Complainant was given a standard fleet car, a Renault Grand Megane Estate, which is a high-end car used by GSOC and the Road Safety Authority at the time.

The witness said that he did not raise any performance issues at the meeting, that there were no real business issues discussed, apart from discussion about a few contracts. Neither party had brought any documents.

The witness said that when Ms. Catherine Staunton resigned from the finance role, he had taken on the tasks. This was a temporary arrangement. He had discovered that the company was paying a Direct Debit to an outside body that should have been ceased much earlier.

He felt that this body was taking unauthorised payments. His Accountant came up with a figure of €80, 000. By the time he spoke to the Complainant, about 50% of this amount had been recovered. He did not attribute blame to the Complainant.

The witness said that he had no recollection of seeing anything about the Complainant’s return date from maternity leave. The leave roster had been done and it seemed that the Complainant’s return date was 1 August.

When the Complainant had suggested a later return date due to unpaid leave he had asked if she needed to take it? He needed to organise cover. When she asked him if there was anything he needed her to do, he replied that she return on 1 August. In the event, she did not return then.

The witness said that September is a busy month for the business.

The witness said that he had no recollection of speaking to the Complainant in August or of saying that the Complainant did not need to come in because he now had Ms. Aldridge. He said that he had very little contact with the Complainant until her return to work in September.

The witness denied that he ever told the Complainant that Ms. Aldridge was coming in to over-see her work. He said that he would have sat the Complainant down and discussed various matters because he recognised that it takes time for a woman to settle back after maternity leave, that customers may change in the meantime and so on.

The witness stated that he ‘absolutely’ did not say that ‘Kristin would have to go’, in reference to a member of staff or that she would leave because she could not stand the pressure. Similarly, he denied having said on 5 September that the work being done by the Complainant was a ‘f*****g waste of time’ or that he demanded of her that she ‘Finish the f*****g month ends’.

He denied saying that there were more important things than the NCT on the Complainant’s car and said that he would take seriously any non compliant cars as the RSA was a valued customer. He denied making any rude or unfair comments to the Complainant.

With regard to the allegation that he had said, in reference to his daughter, that the Complainant should leave Vicky’s accounts alone, the witness said that he did not know what this related to and had not said it. The witness said that the issue about brushes was the norm and denied that he had told the Complainant angrily to ‘sort it out’ or that he had later said that he would ‘..f*****g sort it out myself’. He noted this issue was not her fault, that it was a simple process and could easily be assigned to another employee.

He denied absolutely telling the Complainant to get back to her own desk or that he failed to sign forms, in which regard he said that he did not know to what this related. He noted that he had no role regarding the Revenue on-line service.

On 7 September, the witness denied saying that ‘they will f*****g accept ours’ and said that the customer do not accept the company’s figures until they are verified independently. He also denied saying, ‘sort it out’ and said that he did not know what the reference to the ESB was about.

The witness said that he had no involvement in organising the timing of the NCT on the Complainant’s car, which was arranged by the admin. staff.

The witness denied that he had said ‘I will f*****g do it myself’ in relation to a GSOC tender on 8 September. He said that he did not follow the Complainant and say that he was doing it. He said that he ‘absolutely’ did not refuse to speak to the Complainant and did not exclude her while he spoke to others.

On 11 September, the witness denied that he had told the Complainant that things were not working out and noted that the Complainant had just returned from maternity leave and needed time to find her feet. He denied having said that he was horrified at what he had discovered and he denied that he had made reference, in the manner suggested, to Ms. Aldridge’s arrival.

He recalled the conversation but denied that it was of the tenor suggested. He recalled that he had made reference to the issue with the Direct Debit and to a bullying accusation against the Complainant, that had been investigated in her absence and had been found to have had no substance. He was simply giving her a ‘heads up’ and recalled that she got angry.

He said that he had not raised any performance issues as there were none to raise. He described the Complainant as ‘brilliant’ at her job, as the ‘heartbeat of the company’. He praised her work ethic, her technique, her ability to multi-task and said that the Complainant ‘was the business’.

With regard to Ms. Aldridge, the witness said that she had applied for a role, for which she was way over qualified. The witness had set up a number of separate companies and was spending a lot of time out of the office. He realised that Ms. Aldridge could assist him, in particular in setting up a company based in Naas. He did not see her really having a role in Holden Plant Rentals.

He was looking at getting synergies in systems between the different elements of the Group and his Accountant had recommended bringing in Ms. Aldridge whose background was in Accountancy, rather than in the tendering processes carried out by the Complainant.

The witness said that he had told the Complainant that there would be no real cross-over with the main company. He had little detail. When asked about the Complainant reporting to Ms. Aldridge, the witness said ‘not particularly’ and that the Respondent company would be part of the group. He denied absolutely ever having said that Ms. Aldridge would oversee everyone.

He said that everybody knew that the Complainant was not answerable to anyone, including the witness, that she made her own decisions. He denied absolutely having said that Ms. Staunton and the Complainant had brought nothing to the business and noted that Ms. Staunton had been a brilliant addition to the business, working under the Complainant. They had both contributed to the business growing substantially.

The witness said that the systems being used were out-dated and that he wanted to await the Complainant’s return as she would be a part of the necessary up-dating. The witness said that he did not even know the systems suppliers as this was part of the Complainant’s expertise. He said that he had asked the Complainant to come back in August but she had not done so.

The witness denied having said that his daughter had made more money for him in 6 months than the Complainant had contributed. He explained that his daughter trained horses and ran a nursery and that she had had a good Spring.

He denied having said that they would be changing the customer set-up. He said to do so was a slow process and that the company had to work around customers’ needs. He denied assigning the Complainant’s role to other staff and reiterated that she was the business and that she assigned roles. He said that some of her work had been done by others temporarily while the Complainant was on maternity leave but there was no re-allocation of her role.

He described tendering as a skilled task and said that the Complainant was on top of it. He said that it was complex work and could each take up to 10 weeks, that the Complainant was responsible and when she was out the work was done by the witness, while others might be involved in some aspects. When the Complainant had returned, the witness had not seen any point in bringing her in to part prepared tenders but he reiterated that in this work, the Complainant was the decision-maker.

After the Complainant left work on 11 September, she e-mailed the witness to tell him that she was visiting her GP. It was put to the witness that his reply of ‘Sound’ was terse, to which he responded that he was aware that the Complainant had some health issues and he did not pry into people’s privacy, noting that he got medical certificates.

The witness was asked about the delay in responding to an e-mail from the Complainant setting out her grievances on 31 October in respect of which she sent a reminder on 14 November expressing disappointment with his failure to reply. He replied on 15 November to say that he was stepping back until her allegations were investigated.

The witness said that he knew that the Complainant was unwell and did not want to stress her so he asked Ms. Aldridge to look into the matter, having taken advice, he then stood back and allowed Ms. Aldridge to deal with the HR element.

The witness denied having influenced Ms. Aldridge in her investigation. He said that he knew that she would be ideal to do what was necessary to get the Complainant back to work as he needed her back and would have done anything to get her back.

The witness said that after the outcome of the investigation he had no inter-action with the Complainant over the holiday period. He noted that he had limited day-to- day contact with the Complainant outside of work. The next that he heard of the matter was when the Complainant’s Solicitor wrote to Ms. Aldridge on 9 January.

With regard to the Complainant’s car, the witness said that a winter check was a normal occurrence. He said that he probably spoke to the fleet manager as the car had bald tyres previously and it needed an NCT. The Complainant had been given a fleet car. The witness said that the Complainant was the only person in the company who had a Mercedes and that he drove whatever was available. He generally used a Land Rover.

With regard to the statement by the Complainant that her replacement car had been ‘dragged down the road’, the witness said that she had advised that there had been an accident.

It was noted that the witness himself had written to the Complainant’s Solicitors on 19 February. He was asked why he had gotten back involved and he replied that he had done so because he did not want her to leave, despite everything. He said that he wanted to resolve the matter and he was oblivious to what was going on behind the scenes.

The witness said that the Complainant had never been replaced and that her role had been shared out as the company had had to move on. The company had to learn from errors made after the Complainant’s departure as they had lost her expertise.

Under cross examination, the witness accepted that there had been changes to the Complainant’s terms and conditions since she received a contract in 1995.

He said that the Complainant looked after all of these matters and she would have been responsible for notifying staff of any changes. He said that the Complainant would have dealt with issues regarding maternity leave.

With regard to the witness’ text telling the Complainant to return to work on 1 August, the witness denied that this showed dissatisfaction with the Complainant. He said that his texts are always brief. He was not unhappy with her. He had scheduled her for the roster.

The witness denied that he had told the witness that there was no need for her to return for one or two days per week as they had Ms. Aldridge. He said that he was aware that the Complainant had health problems and he had made alternative internal arrangements. He said that nobody could have substituted for the Complainant.

The witness denied that he ignored calls from the Complainant and said that he always got back to callers.

When asked if he was saying that the Complainant was lying and had manufactured her complaint, the witness said he was not but that there was something that he was unaware of going on, noting that his text in which he replied ‘Sound’, went straight to the Complainant’s Solicitor. He reiterated that he wanted to keep the status quo.

In response to a question, the witness denied making the comment about his daughter making more money for him than the Complainant. He clarified that the daughter being referred to was not his daughter who worked in the Respondent company but another daughter.

When it was put to him to explain how he knew this if he denied the conversation, the witness said that he denied the comment claimed but he did not deny that there was a discussion about the good year that his daughter had.

It was put to the witness that the Complainant was a stranger to any bullying complaint against her. The witness said that he had advised her that a complaint had been made but was found to have had no substance.

It was put to the witness that his evidence was that the Complainant’s return was phased but that she was also ‘at large’ and that she could not have been both. The witness asked ‘Why not?’ and explained that he did not just expect the Complainant to return to work on a Monday morning and ‘hit the ground running’.

It was put to the witness that the allegations made by the Complainant were true. He denied this.

It was put to the witness that he was suggesting that Ms. Aldridge’s role was independent from that of the Complainant but Ms. Aldridge had given evidence that she was superior to the Complainant, particularly with regard to operations. The witness denied any inconsistency.

It was put to the witness that he never gave the Complainant the opportunity to apply for the role filled by Ms. Aldridge. He replied to say that the appointment of Ms. Aldridge came about almost by accident. When asked if he had put the Complainant on notice of the opportunity, he confirmed that he had not.

The witness said that he could recall a discussion with the Complainant regarding her motor tax cert. He noted that the Respondent company was responsible for taxing 4000 vehicles and that it was a matter for the Complainant to tax her vehicle. He noted that the car was taxed in his name, at the Complainant’s request, in order to avoid liability for Benefit-in-Kind.

It was put to the witness that he had failed to respond to the Complainant’s grievance complaint for 15 days but, by the time he replied, he had copied his daughter, who was the Complainant’s subordinate, with the correspondence.

The witness said that he did not know if he had done so.

It was put to the witness that he had appointed Ms. Aldridge to investigate when she was just in the door. He replied that this made her more suitable and he did not accept that she was unsuitable because part of the grievance related to her appointment.

The witness denied having expressed dissatisfaction with a Renault car as inferior. He did not accept that Renault were inferior cars and they had been used only as a replacement for a short time.

He confirmed that he had asked that the Complainant’s car be checked to ensure it was winter ready and said that every car in the fleet was checked in this way. He denied that he had done so because of the complaint.

It was put to the witness that his evidence to the Court setting out the structure of the group had not been put to the Complainant when answering her grievance. The witness said that he was simply answering the questions put to him.

It was put to the witness that the Complainant had not reported an ‘accident’ with the replacement car but, rather, an incident in which the engine fell out. The witness said that he did not know but the report described an ‘accident’.

He said that he was not on site when the car was collected but the report did not suggest that the engine had fallen out but that the suspension had been pushed up, seemingly as a result of the wheel hitting something. He said that it was not a big deal, that it happened every day.

It was put to him that this Renault replacement car had never been replaced. The witness said that, before a car can be replaced, it is necessary for an accident report form to be completed, a form had been sent to the Complainant but she had never returned it.

It was put to the witness that his representative had submitted that the non replacement of the car was a matter for the fleet provider and outside of the witness’ control but that, in fact, he owned the fleet. T

he witness reiterated that non replacement was due to the Complainant not returning the accident report form. He denied the claim that the Complainant had been given a faulty car that, when taken away, had not been replaced.

It was put to the witness that one day after a failed mediation, her telephone was cut off and that she was victimised in order to punish her. The witness said that he had no knowledge of the telephone problem and that the Complainant ‘absolutely not’ had been victimised.

It was put to the witness that the entire Grievance Process had been fundamentally unfair. The witness said that unbeknown to him, there was something else at play.

In response to questions from the Court, the witness confirmed that the Complainant and himself had been friends. He could not answer as to why then he had delayed responding to the complaints received on 31 October, other than to say that he wanted somebody else to deal with the complaint in a proper manner and that he was aware that the Complainant had health problems.

He accepted the point made to him that this may have generated more anxiety on the part of the Complainant. When it was put to him that he could have re-assured the Complainant that she was not being displaced, the witness said that she had been advised of this, she would have known and that the witness had explained. He said that there was never an issue about the Complainant’s work performance. He said that he had been advised to stand back.

The witness said that not all of the money incorrectly paid had been recovered.

The witness said that the Complainant did not have responsibilities outside of the Respondent company.

The witness said that there was one other person in the group paid more than the Complainant.

The witness said that he could not identify why the relationship had collapsed but suggested that maybe there was something being orchestrated.

The witness denied that Ms. Aldridge was conflicted and said that the investigation was in-house and private and that he thought that it was important to have the investigation carried out in this way as he felt that the complaint was more personal against him rather than the company.

The witness said that inspections on all cars were carried out every 12 and 26 weeks and suggested that the Complainant could have been surprised because the inspections of her car would normally take place while she was in work. He reiterated that he knew nothing about the telephone as he had no day-to-day involvement with IT.

Complaint of Harassment

The applicable law.

Employment Equality Acts 1998-2015

Harassment and sexual harassment.

14A. — (1) For the purposes of this Act, where —

(a) an employee (in this section referred to as ‘ the victim ’ ) is harassed or sexually harassed either at a place where the employee is employed (in this section referred to as ‘ the workplace ’ ) or otherwise in the course of his or her employment by a person who is —

(i) employed at that place or by the same employer,

(ii) the victim ’ s employer, or

(iii) a client, customer or other business contact of the victim ’ s employer and the circumstances of the harassment are such that the employer ought reasonably to have taken steps to prevent it,

or

(b) without prejudice to the generality ofparagraph (a)—

(i) such harassment has occurred, and

(ii) either —

(I) the victim is treated differently in the workplace or otherwise in the course of his or her employment by reason of rejecting or accepting the harassment, or

(II) it could reasonably be anticipated that he or she would be so treated,

the harassment or sexual harassment constitutes discrimination by the victim ’ s employer in relation to the victim ’ s conditions of employment.

(2) If harassment or sexual harassment of the victim by a person other than his or her employer would, but for this subsection, be regarded as discrimination by the employer undersubsection (1), it is a defence for the employer to prove that the employer took such steps as are reasonably practicable —

(a) in a case wheresubsection (1)(a)applies (whether or notsubsection (1)(b)also applies), to prevent the person from harassing or sexually harassing the victim or any class of persons which includes the victim, and

(b) in a case wheresubsection (1)(b)applies, to prevent the victim from being treated differently in the workplace or otherwise in the course of the victim ’ s employment and, if and so far as any such treatment has occurred, to reverse its effects.

(3) A person ’ s rejection of, or submission to, harassment or sexual harassment may not be used by an employer as a basis for a decision affecting that person.

(4) The reference insubsection (1)(a)(iii)to a client, customer or other business contact of the victim ’ s employer includes a reference to any other person with whom the employer might reasonably expect the victim to come into contact in the workplace or otherwise in the course of his or her employment.

(5) In this section ‘ employee ’ includes an individual who is —

(a) seeking or using any service provided by an employment agency, and

(b) participating in any course or facility referred to inparagraphs (a)to(c)ofsection 12(1),

and accordingly any reference to the individual ’ s employer includes a reference to the employment agency providing the service or, as the case may be, the person offering or providing the course or facility.

(6) Wheresubsection (5)applies in relation to a victim, subsection (1) shall have effect as if for ‘ in relation to the victim ’ s conditions of employment ’ there were substituted ‘ contrary tosection 11’ or, as the case may be,section 12.

(7) (a) In this section —

(i) references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds, and

(ii) references to sexual harassment are to any form of unwanted verbal, non-verbal or physical conduct of a sexual nature,

being conduct which in either case has the purpose or effect of violating a person ’ s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.

(b) Without prejudice to the generality of paragraph (a), such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material.

Burden of proof.

85A. — (1) Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.

Deliberation

The meaning to be ascribed to ‘harassment’ is prescribed by s.14A of the Acts. In order to come within the statutory definition, the conduct complained of must, in the words of the statute, have: “the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person”.

The scope of the term is limited to unwanted conduct on any of the protected discriminatory grounds. The Acts do not protect against bullying and harassment more generally where there is no link to discriminatory grounds.

The complaints made are that the Respondent reacted badly to the knowledge of the Complainant’s pregnancy, made derogatory remarks regarding same and subsequent to the Complainant’s return from maternity leave, he told her that he was horrified at her performance and that she was only interested in her car.

It is alleged then that the Complainant was denied fair and reasonable process in that her complaints were not properly investigated.

The Respondent states that the comments made when he learned of the Complainant’s pregnancy were light hearted banter, he denies making any adverse comments to the Complainant criticising her performance or regarding her car and says that she was afforded an opportunity to have her grievance investigated.

There is, therefore, a direct conflict in the evidence of the parties , both of whom express their accounts with a vehemence that renders it difficult for the Court to determine the truth.

While s.85A of the Act is clear in placing the obligation on a complainant in the first instance to establish facts from which it may be presumed that discrimination has occurred and while the case of Mitchell v. Southern Health Board, (2001) ELR 201 has expanded on these requirements and the Court noted in Melbury Developments v. Valpeters (2010) ELR 64 that mere assertions cannot be elevated to the status of facts, the Court has to recognise that in cases of alleged harassment, there is often no evidence available apart from the evidence given by victims. This makes it extremely difficult when the Court is faced with diametrically opposite accounts, as in this case.

It is not denied by the Respondent that he made a comment to the Complainant when he learned of her pregnancy. While any such comment was outside of the cognisable period and cannot, itself, be the subject of the Court’s consideration, if it was held to have indicated annoyance on the part of the Respondent then it might support the contention of the Complainant that she was subject to subsequent harassment.

However, the Court is inclined to accept at face value that the comment made was by way of light banter, not least because no exception was taken to it at the time by either the Complainant or her sister.

The Complainant offers the curt reactions of the Respondent by text when engaging with him regarding her return to work and in a single word responding text, saying ‘Sound’, by the Respondent to her advising him that she was visiting her doctor, as further evidence of his displeasure with her. Such curt responses may well have upset the Complainant in the context of the close working relationship and friendship between the parties. It is not, however, the function of the Court to lecture the Respondent on his manners when dealing with employees and/or friends. The Court has to consider if these reactions offer any support for the harassment claim.

In this regard, the Court notes that the statement by the Respondent to the Complainant that he wished her to return to work on 1 August was a direct response to her question as to what he wanted from her? It cannot be argued that the Respondent was not entitled to give a direct response to a direct question nor, in the Court’s view, does it establish anything of significance. Likewise, responding with a single word, ‘Sound’, is just as likely to be explained on the basis of an acknowledgement of receipt of the message rather than as an indication of annoyance.

In short, therefore, the Court is not assisted by any other fact in its assessment of the different version of events.

The Court also has to consider if, even if the alleged remarks were made, which is denied, do they constitute harassment? While the Respondent denies vehemently ever having made negative comments regarding the Complainant’s work performance, even if he had done so, would that constitute harassment in respect of any of the discriminatory grounds protected under the Acts? On the facts of the instant case, it is not disputed that there was some issue regarding a Direct Debit that was costly for the Respondent.

In the view of the Court any comment to the Complainant relating to that matter might well have been insensitive, if made, and, arguably, unfair but it does not meet the definition of ‘harassment’, as set out above. If an employer finds that something has gone wrong, they are entitled to draw it to attention and, depending on the circumstances, they may be entitled to be critical.

The Acts do not prevent an employer from doing so. What they prevent is harassment in respect of any of the protected grounds in the Acts. This cannot preclude an employer from being critical of an employee unless that criticism is linked to one of the protected grounds.

On the other hand, telling the Complainant that she was interested only in her car would be not only unfair, it would undoubtedly have had the effects set out in the definition. Furthermore, given the context i.e. upon her return from maternity leave, it might well be the case that such remarks are more than general harassment and fall within the protections of the Acts.

However, on balance, in the absence of any corroboration, the Court cannot be satisfied that, as a fact, this comment was made. The onus for establishing that this remark was made falls on the Complainant. The Court has no way of judging if the comment was made, apart from an attempt to assess what was strenuously argued in contradictory evidence by the parties.

That is not enough to satisfy the Court that it is safe to conclude that, on the balance of probabilities, the exchange complained of did actually occur. Therefore, the Court cannot be satisfied that the first requirement set out in s. 85A of the Act has been met in establishing a fact from which discrimination can be presumed.

The Court has observations to offer later in this Determination regarding the inadequacy of the investigation into the complaints raised by the Complainant. However, in the instant case, the Court does not consider that the failures of that process offer any support for the complaint of harassment. The onus is on the Complainant to prove in the first instance that certain facts occurred from which harassment, within the meaning of the Act, can be presumed.

While there are situations where the Court might deem it relevant to consider the inadequacy of an investigation in this context, the Court cannot see how that would apply in this case, where there is a direct conflict of evidence on the one net point which might, arguably, meet the definition of the harassment in the Acts and in respect of which each party is vehement in their accounts.

In accordance with the reasoning set out, the Complainant’s appeal cannot succeed.

Discriminatory Constructive Dismissal.

The applicable law

Employment Equality Acts 1998-2015

Interpretation

2.(1)

“dismissal” includes the termination of a contract of employment by the employee (whether prior notice of termination was or was not given to the employer) in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled to terminate the contract without giving such notice, or it was or would have been reasonable for the employee to do so, and “dismissed” shall be construed accordingly;

Discrimination for the purposes of this Act.

6.— (1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where —

(a) a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified insubsection (2)(in this Act referred to as the ‘ discriminatory grounds ’ ) which —

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned,

(b) a person who is associated with another person —

(i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and

(ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue ofparagraph (a), constitute discrimination.

(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”),

(b) that they are of different F15 civil status (in this Act referred to as “the civil status ground”),

(c) that one has family status and the other does not (in this Act referred to as “the family status ground”),

(d) that they are of different sexual orientation (in this Act referred to as “the sexual orientation ground”),

(e) that one has a different religious belief from the other, or that one has a religious belief and the other has not (in this Act referred to as “the religion ground”),

(f) that they are of different ages, but subject tosubsection (3)(in this Act referred to as “the age ground”),

(g) that one is a person with a disability and the other either is not or is a person with a different disability (in this Act referred to as “the disability ground”),

(h) that they are of different race, colour, nationality or ethnic or national origins (in this Act referred to as “the ground of race”),

(i) that one is a member of the Traveller community and the other is not (in this Act referred to as “the Traveller community ground”).

(2A) Without prejudice to the generality ofsubsections (1)and(2), discrimination on the gender ground shall be taken to occur where, on a ground related to her pregnancy or maternity leave, a woman employee is treated, contrary to any statutory requirement, less favourably than another employee is, has been or would be treated.

Deliberation.

The Complainant asserts that her relationship with her employer had, due to the unreasonable actions of the Respondent, become so intolerable that she was left with no choice but to resign from her employment.

The Respondent submits that, irrespective of the strength of the Complainant’s sense of grievance, she was offered an independent third party appeal of the outcome of the investigation into her grievance and that she chose to resign before availing of this.

InA Worker (Mr O) v An Employer (No 2)[2005] 16 ELR 132 this Court extensively considered the circumstances in which the provision in s.2(1) of the Acts, set out above, can apply. Here the Court said: -

"This definition is practically the same as that contained at section 1 of the Unfair Dismissals Acts 1977 –2001 and the authorities on its application in cases under that Act are apposite in the instant case. It provides two tests, either or both of which may be invoked by an employee. The first test is generally referred to as the “contract” test where the employee argues “entitlement” to terminate the contract. The second or “reasonableness” test applies where the employees asserts that in the circumstances it was reasonable for him or her to terminate the contract without notice.

The contract test was described by Lord Denning MR inWestern Excavating (ECC) Ltd v Sharp [1978] IRLR 332as follows:

“If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself discharged from any further performance”

This passage describes a situation in which an employer commits a repudiatory breach of contract. In such circumstances the employee is entitled to accept the repudiation and consider him or herself dismissed. However not every breach of contract will give rise to repudiation. It must be a breach of an essential term which goes to the root of the contract. This is a stringent test which is often difficult to invoke successfully.

There is, however, the additional reasonableness test which may be relied upon as either an alternative to the contract test or in combination with that test. This test asks whether the employer conducts him or her affairs in relation to the employee, so unreasonably that the employee cannot fairly be expected to put up with it any longer. T

hus, an employer’s conduct may not amount to a breach of contract but could, none the less, be regarded as so unreasonable as to justify the employee in leaving. Further, the employer may commit a breach of contract which may not be of such a nature as to constitute repudiation, but is so unreasonable as to justify the employee in resigning there and then.

It was not made clear to the Court if the Complainant was seeking to rely on a claimed breach of contract in addition to the reasonableness test in arguing a case for constructive dismissal. It is clear to the Court , however, that there was no change made by the Respondent to the working terms and conditions of the Complainant and there is no evidence of any breach of contract.

While the position of the Complainant in the Respondent’s hierarchy might be said to change the terms of contract, the Court would require argument on that specific point to be made before offering its view. As no such specific argument was made, the Court assumes that the argument being proffered relates to the reasonableness of the Respondent and the Court is required to assess the complaint by reference to the ‘reasonableness test’.

In constructive dismissal cases the Court must examine the conduct of both parties. In normal circumstances a complainant who seeks to invoke the reasonableness test in furtherance of such a claim must also act reasonably by providing the employer with an opportunity to address whatever grievance they may have.

They must normally demonstrate that they have pursued their grievance through the procedures laid down in the contract of employment before resigning (seeConway v Ulster Bank LimitedUD 474/1981).

InBeatty v Bayside SupermarketsUD 142/1987, in referring to the need to utilise grievance procedures, the Employment Appeals Tribunal held:-

“The Tribunal considers that it is reasonable to expect that the procedures laid down in such agreements be substantially followed in appropriate cases by employer and employee as the case may be, this is the view expressed and followed by the Tribunal in Conway v Ulster Bank Limited UD 474/1981. In this case the Tribunal considers that the procedure was not followed by the claimant and that it was unreasonable of him not to do so. Accordingly we consider that applying the test of reasonableness to the claimant’s resignation he was not constructively dismissed”.

On the other hand, inAllen v Independent Newspapers (Ireland) Limited[2002] ELR 84, the Employment Appeals Tribunal held that it was reasonable on the facts of that case for the complainant not to have faith in the employer’s ability to properly or effectively address her grievances.

The question for the Court in the instant case is whether or not it was reasonable for the Complainant to resign before availing of the appeal offered to her.

The Complainant argues with some conviction that she had every reason to have lost faith in the willingness of her employer to treat her fairly and that she had no option but to resign.

In this regard, the Court cannot avoid noting that the investigation of the Complainant’s grievances was completely unsatisfactory on every level. It beggars belief that the Respondent could have seriously considered that Ms. Aldridge, whose appointment was, itself, part of the grievance, was a suitable person to conduct the investigation.

This is not a question of Ms. Aldridge’s personal ‘bona fides’ but, rather a question as to the appropriateness of the assignment of somebody to undertake a task in respect of which she was an interested party.

Furthermore, it was evident to the Court that Ms. Aldridge, through no fault of her own, did not possess the knowledge or experience to conduct such an investigation in accordance with the necessary standards.

Without labouring the point, it is evident to the Court that any reasonable person would have lost faith in the Respondent, as the Complainant did. Quite simply, the entire investigation was a legitimate source of concern and frustration.

However, the Complainant was offered an independent appeal and the Court has to consider if it was reasonable for her to resign before availing of this offer.

The offer was to have the appeal conducted by a company called Graphite HR. It would appear that this company has a linkage to Peninsula, the Respondent’s HR advisors who represented the Respondent in these proceedings.

This linkage was raised in the course of the Court hearings. It might, arguably, have been reasonable for the Complainant to have objected to this company and to have sought an alternative appointment. However, this is hypothetical as the Complainant did not do so, as a result of which the Court will offer no definitive opinion on the appropriateness of this company conducting such an appeal.

In fact, the Complainant simply decided that, such was her disillusionment with the Respondent, she had no choice but to resign.

Generally, the Court takes the view that to meet the reasonableness test, a complainant has to have shown that they utilised all available mechanisms. There are, relatively rare, cases, such as ‘Allen’, in which the Court takes the view that the employer’s behaviour is so unreasonable that an employee could not be expected to utilise all such processes.

However, that bar is set high and resignation from employment if it is to be deemed as a constructive dismissal must really be a last and logical resort.

In the instant case, the Court notes that the resignation of the Complainant was conveyed to the Respondent by her Solicitor. Therefore, prior to her resignation, the Complainant had the benefit of professional advice.

Furthermore, even after this, the Respondent sought to persuade the Complainant to engage with an independent appeal. The Complainant’s representative did not raise an objection to the particular company that was to conduct the appeal but, rather, described the process as ‘too little, too late’.

However, a simple perusal of this Court’s Determinations in constructive dismissal cases would have revealed the emphasis that the Court places on the importance of utilising all available processes.

The Court has to conclude, therefore, that, notwithstanding a comprehension of the importance of exercising a right to appeal, the Complainant chose not to do so. However imperfect the investigation, the offer of an outside, independent appeal was made to the Complainant both before and after she submitted her resignation. Her failure to take that opportunity makes her resignation precipitative and is, in the view of the Court, fatal to her claim for constructive dismissal.

Victimisation

The applicable law

Employment Equality Acts 1998-2015

74.

(1) In this Part, unless the context otherwise requires…..

victimisation” shall be construed in accordance withsubsection (2)

(2) For the purposes of this Part victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to —

(a) a complaint of discrimination made by the employee to the employer,

(b) any proceedings by a complainant,

(c) an employee having represented or otherwise supported a complainant,

(d) the work of an employee having been compared with that of another employee for any of the purposes of this Act or any enactment repealed by this Act,

(e) an employee having been a witness in any proceedings under this Act orthe Equal Status Act 2000or any such repealed enactment,

(f) an employee having opposed by lawful means an act which is unlawful under this Act or the said Act of 2000 or which was unlawful under any such repealed enactment, or

(g) an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs.

Burden of proof.

85A. — (1) Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.

Deliberation.

This Court offered the following observations in the case of Department of Defence v. Barrett, EDA1017;

Protection against victimisation is a vital component in ensuring the effectiveness of anti-discrimination law. It enables those who considered themselves wronged by not being afforded equal treatment to raise complaints without fear of retribution.

Article 11 of Directive 2000/78/EC requires Member States to introduce into their legal systems such“measures as are necessary to protect employees against dismissal or other adverse treatment by employers as a reaction to a complaint within the undertaking or to any legal proceedings aimed at enforcing compliance with the principle of equal treatment”

That obligation is given effect in Irish law by s.74(2) of the Acts. The definition of victimisation contained in that section contains essentially three ingredients. It requires that: -

1. The Complainant had taken action of a type referred to at s.74(2) of the Acts (a protected act),

2. The Complainant was subjected to adverse treatment by the Respondent, and,

3. The adverse treatment was in reaction to the protected action having been taken by the Complainant.

What constitutes a protected act is defined, at s.74(2) (Paragraphs (a) to (g) inclusive, as set out above).

The alleged victimisation in this case relates to what the Complainant says was done to her in respect of her company car and her company telephone.

With regard to her telephone, the Complainant says simply that it was cut off from service on the day after she attended a mediation exercise with the Respondent.

In relation to her car, the Complainant says that her company Mercedes was taken from her, she was given an inferior replacement, the engine of this replacement ‘fell out’, that car was taken away by the Respondent and was never replaced. She says that these incidents occurred because she had raised grievances which, themselves, arose from discriminatory treatment, contrary to her rights under the Acts.

The Respondent says in relation to the telephone that when a problem was brought to their attention, they sought to have it rectified. In relation to the car, the Respondent says that the Complainant’s Mercedes was taken in for a routine check, a high end temporary replacement was provided, this car was subsequently in an accident, it was removed by the Respondent and a replacement could not be provided as the Complainant declined to complete an accident report form, which is said to be a standard requirement.

It is not disputed that the Complainant had raised complaints about her treatment in October 2017.

While the Respondent drew attention to the fact that the Complainant had raised a complaint under the Acts regarding victimisation prior to any issue with her telephone, she subsequently raised a further complaint referencing what had occurred with the telephone. The Court is satisfied that, in making a complaint in October 2017, the Complainant made a protected act.

It is not necessary that the complaint, itself, specifies that it arises under the Acts in order for it to be protected. The Complainant raised a grievance regarding the manner of her treatment that occurred while she was on maternity leave. Accordingly, any adverse treatment of the Complainant by the Respondent after that complaint can be considered by the Court to determine if it constitutes victimisation.

It is the contention of the Complainant, disputed by the Respondent, that the difficulties that she encountered with her telephone in February 2018 were as a direct consequence of the breakdown in mediation efforts the previous day, mediation efforts that arose due to her original complaint. Accordingly, the Court is satisfied that it has jurisdiction to consider both aspects of the victimisation complaint.

In the first instance, the Complainant must establish the facts upon which her complaint is seeking to rely. The Respondent refutes the complaint of victimisation and offers alternative explanations in respect of the sequence of events regarding the Complainant’s car.

It is not disputed that that the Complainant’s Mercedes was replaced with a Renault. It is not disputed that this latter car was taken away and it is not disputed that this car was not replaced. The reasons for all of these occurrences are the basis for the dispute.

In this regard, the Court has very little to go on. Both parties gave clear evidence in support of their account as to why these events occurred.

Only one piece of independent, documentary evidence in respect of any of these matters was provided to the Court to corroborate any of the versions of events and that was the garage report regarding the damage to the replacement car that appears to support the account given by Mr. Holden that the car had been crashed and that the suspension had been driven upwards.

This report also set out that the car was roadworthy when given to the Complainant.

However, it is not clear to the Court why a car taken in by the Respondent for ‘a winter service’ in November 2017 had not been returned to her by the time the replacement car was towed away on 8 December.

In his own evidence, Mr. Holden told the Court that the reason a winter service might have been unknown to the Complainant was because such a service would normally have been carried out and completed within her normal working day.

The delay in returning this replacement car is at variance with this evidence and has not been explained. This suggests to the Court that there was some basis for the Complainant’s belief that this car was taken from her ‘for’ having made a complaint, to use the phraseology of the Court in the case of alleged victimisation, albeit related to a different Act, in Toni and Guy Blackrock v. Paul O’ Neill HSD095.

Furthermore, in the original submission to the Court, the Respondent’s representative argued that the decision to remove this car had nothing to do with the Respondent but, rather, was a decision taken by the fleet operator, while in evidence, Mr. Holden said that he had requested that the car be taken in for a ‘winter service’. This discrepancy in accounts to the Court was never adequately explained.

The Court notes that the Respondent explained the subsequent failure for the replacement car, itself, to be replaced due to an alleged failure by the Complainant to complete an accident report form. This failure was not disputed, so the Court accepts this particular aspect of the Respondent’s evidence.

With regard to the telephone, it is not disputed that the Complainant lost coverage on the day following an attempted mediation. The Court was told that this was being looked into by an employee of the Respondent and that the Complainant resigned her employment before the Respondent had an opportunity to establish what had occurred and to resolve any problems with the telephone.

The Court notes that the employee concerned did not give evidence to the Court, although she is understood to still be in the employment, that would have enabled the Court to explore this matter.

Furthermore, the Court notes that the Complainant notified the Respondent on 9 February 2018 of the issues with her telephone, sought confirmation that it would be reconnected and sought an explanation.

The Complainant’s Solicitor notified the Respondent of the Complainant’s resignation a full week later, on 16 February 2018, by which time the Complainant had neither been re-connected nor had any explanation been provided.

Indeed, rather than address the matter, in the meantime, Ms. Aldridge, on behalf of the Respondent, had replied to the Complainant to describe her demands regarding the car and the telephone as ‘unreasonable’, which, in the circumstances seems to the Court to be, at the very least, unfair as the Complainant might be entitled to ask if time could be taken to provide such a reply, why could any issue with the telephone not be addressed?

While the Court is somewhat troubled by the fact that evidence regarding the damage to the replacement car appears to substantiate the Respondent’s account and, as noted above, accepts that the Complainant did not fill out an accident complaint form in respect of damage to this car, all of the other factors suggest to the Court that , on the balance of probabilities, there is an excess of coincidences, such as to lead to the conclusion that the issues with the Complainant’s car and telephone arose because the Complainant had made a complaint.

In reaching this conclusion, the Court has regard to the observations by the Court in ‘Toni and Guy’, as follows;

‘…. it seems to the Court that a form of shifting burden of proof, similar to that in employment equality law should be applied in the instant case. Thus the Claimant must establish, on the balance of probabilities, that he made complaints concerning health and safety.

It is then necessary for him to show that, having regard to the circumstances of the case, it is apt to infer from subsequent events that his complaints were an operative consideration leading to his dismissal. If those two limbs of the test are satisfied it is for the Respondent to satisfy the Court, on credible evidence and to the normal civil standard, that the complaints relied upon did not influence the Claimant’s dismissal. ‘

The Court is satisfied in the instant case that there was a protected act, it is ‘apt to infer’ from subsequent events that the complaints were an operative consideration in the treatment of the Complainant regarding her car and her telephone, so it is for the Respondent to satisfy the Court that the complaints did not influence the subsequent treatment of the Complainant. The Respondent has not satisfied the Court in this regard. Accordingly, a complaint of victimisation is well founded.

The victimisation of a worker for raising a complaint is a very serious matter as the Acts set out rights which all workers are entitled to seek to have upheld without the fear that by so doing they could be exposed to penalisation by their employer.

Therefore, in determining the appropriate compensation to be applied, the Court has to have regard in particular to the principles enunciated inVon Colson and Kamann v Land Nordrhein-Wesffalen[1984] ECR 1891 to the effect that awards of compensation must be effective, dissuasive and proportionate. In applying these principles to complaints of victimisation, the Court has to have regard to both the dissuasive requirement, so that awards are sufficiently high as to dissuade employers from engaging in such actions and also to the requirement to be proportionate in taking account of the consequences for the worker of the victimisation by the employer.

In the instant case, the consequences were related to the Complainant’s company car and telephone.

The Court determines that the appropriate compensation is €20,000 and the Complainant is directed to pay same to the Complainant.

Discrimination on grounds of gender and family status.

The applicable law

Employment Equality Acts 1998-2015

Discrimination for the purposes of this Act.

6.— (1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where —

(a) a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified insubsection (2)(in this Act referred to as the ‘ discriminatory grounds ’ ) which —

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned,

(b) a person who is associated with another person —

(i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and

(ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue ofparagraph (a), constitute discrimination.

(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”),

(b) that they are of different civil status (in this Act referred to as “the civil status ground”),

(c) that one has family status and the other does not (in this Act referred to as “the family status ground”),

(d) that they are of different sexual orientation (in this Act referred to as “the sexual orientation ground”),

(e) that one has a different religious belief from the other, or that one has a religious belief and the other has not (in this Act referred to as “the religion ground”),

(f) that they are of different ages, but subject tosubsection (3)(in this Act referred to as “the age ground”),

(g) that one is a person with a disability and the other either is not or is a person with a different disability (in this Act referred to as “the disability ground”),

(h) that they are of different race, colour, nationality or ethnic or national origins (in this Act referred to as “the ground of race”),

(i) that one is a member of the Traveller community and the other is not (in this Act referred to as “the Traveller community ground”).

(2A) Without prejudice to the generality ofsubsections (1)and(2), discrimination on the gender ground shall be taken to occur where, on a ground related to her pregnancy or maternity leave, a woman employee is treated, contrary to any statutory requirement, less favourably than another employee is, has been or would be treated.

Deliberation

In the case ofCroc’s Hair and Beauty v. Helen Ahern, ADE/16/58, this Court set out at some length its understanding of the legal protections for pregnant women. It is not necessary to re-state here the full text of the Court’s Determination in that case.

It is sufficient to summarise this by referring to the fact that the then ECJ recognised in the case ofDekker v. Stichting Vormingscentru voor Jonge Volwassen (VJV-Centrum) C177/88 (1990) EUECJ R177/88,that, as pregnancy is a uniquely female condition, any less favourable treatment on grounds of pregnancy constitutes direct discrimination on grounds of gender.

This principle has been copper fastened by the recognition of equality on gender grounds in the Charter of Fundamental Rights of the European Union which was, in turn, incorporated into the Lisbon Treaty.

The jurisprudential principle is set out in Directive 2006/54, which provides that any less favourable treatment of a woman related to pregnancy or to maternity leave constitutes unlawful discrimination.

In drawing on these sources and on relevant case law, this Court in theCroc’scase observed that the special protection afforded to women from the commencement of their pregnancy until the end of their maternity leave is to be regarded as a fundamental right and that where a pregnant woman is treated adversely because of her condition during this period, the employer bears the burden of proving, on cogent and credible evidence, that such treatment was in no sense related to her pregnancy.

In the instant case, the Complainant argues that while she was on maternity leave, the Respondent created a position, for which she was not given a chance to apply, that was a superior position in the employment to the one held by her, that she was expected to report to the appointee, that she was, effectively, down-graded and also that undue pressure was brought to bear on her regarding her return to work date.

The Respondent states that the new reporting relationship was not as clear-cut as claimed by the Complainant, that an employee has no right to dictate to whom they report, that there was no change in the Complainant’s conditions and that no undue pressure was brought to bear in seeking the return of the Complainant’s return from maternity leave.

With regard to alleged pressure on the Complainant to return from maternity leave, the Court notes that there was an exchange between the parties in which the Respondent sought clarity about a return date, the Complainant asked what was required and the Respondent replied that she should return on a particular date.

The Court sees nothing unusual or discriminatory about an employer seeking clarity about a return date or about an employer responding to a query concerning what was required by specifying such a date.

With regard to the appointment of Ms. Aldridge, it is not disputed that she was appointed while the Complainant was on maternity leave nor is it disputed that the Complainant was not afforded the opportunity to apply.

The Respondent suggests that there was an imprecision in the role of Ms. Aldridge relative to that of the Complainant. This also might appear to be substantiated by the fact that Ms. Aldridge’s salary was less than that of the Complainant.

On the other hand, Ms. Aldridge, herself, clearly believed that the Complainant would report to her in respect of some matters, at least, and the title of her role as a General Manager of the group of companies would suggest strongly that this was a rather obvious conclusion.

It seems extraordinary that Mr. Holden could be surprised that the Complainant felt belittled and demoted by the appointment of Ms. Aldridge and that he should be, apparently, mystified as to the Complainant’s reaction.

However, insensitivity is not, itself, proof of discrimination. What is of more consequence are the facts that a post was created, while the Complainant was on maternity leave, that resulted in the Complainant being down-graded, insofar as she would no longer report to the Managing Director but would be required to report to Ms. Aldridge, according to Ms. Aldridge’s evidence, at least in respect of some matters.

This down-grading of status did not mean that the Complainant was replaced in her job by Ms. Aldridge but it did impact on her role within the employment.

In determining if a detriment was suffered by the Complainant due to her maternity leave, it is instructive to refer to the right of a woman returning from maternity leave under the Maternity Protection Act, 1994 to return‘under terms or conditions not less favourable than those that would have been applicable to the employee if she had not been so absent from work.’

The instant appeal does not arise under that particular Act but it is helpful to the Court in dealing with the question before the Court in determining if discrimination occurred.

While the formal employment rights under the Complainant’sde factocontract of employment did not change, there is no doubt that her role and status were eroded as a result of the Respondent’s actions and that, in reality, she returned under terms and conditions that were less favourable than when she commenced her maternity leave.

The Court is of the view that the salary paid to Ms. Aldridge is irrelevant to the argument. Ms. Aldridge advised the Court that the salary she received matched her expectation.

If the Complainant had been afforded the opportunity to apply and had not done so, due to salary considerations then it would have been open to the Respondent to argue that no discrimination could be said to have occurred. More likely, in such an event, some negotiation would have occurred between the parties regarding the salary.

The fact that there was a change in the Complainant’s status while she was on maternity leave ensures that the employer is required to prove that such treatment was in no way related to her pregnancy.

Even on Mr. Holden’s own evidence, the situation regarding his group of companies advanced in the period of the Complainant’s maternity leave. Before making decisions that impacted on the Complainant’s role, he might be expected, at the very least, to have consulted with her.

The fact that he chose not to do so requires him to establish to the satisfaction of the Court that this choice was unrelated to the fact of the Complainant being on maternity leave.

The Court has not been given what it could regard as a credible explanation for this failure. Therefore, the Court can only conclude that the Respondent has failed to meet the burden of establishing that his behaviour was in no way related to the Complainant’s maternity leave. Accordingly, the Court finds that discrimination due to pregnancy has occurred.

Discrimination due to pregnancy is direct discrimination on grounds of gender. The Complainant argues also that she was discriminated against on grounds of family status.

In brief summary, to establish a case on this separate ground, it is necessary for a complainant to show that that they were treated less favourably than a person with a different family status. No argument was put to the Court to substantiate a complaint that the Complainant was treated less favourably than somebody with a different family status was or would have been treated. Accordingly, no case has been made out on that ground.

In terms of compensation that may be awarded, the Acts provide as follows;

Redress which may be ordered.

82.—

(1) Subject to this section, the types of redress for which a decision of the Director General of the Workplace Relations Commission undersection 79may provide are such one or more of the following as may be appropriate in the circumstances of the particular case:

(a) an order for compensation in the form of arrears of remuneration (attributable to a failure to provide equal remuneration) in respect of so much of the period of employment as begins not more than 3 years before the date of the referral undersection 77(1)which led to the decision;

(b) an order for equal remuneration from the date referred to inparagraph (a);

(c) an order for compensation for the effects of acts of discrimination or victimisation

(4) The maximum amount which may be ordered by the Director General of the Workplace Relations Commission by way of compensation undersubsection (1)(c) or(1)(f) shall be —

(a) in any case where the complainant was in receipt of remuneration at the date of the reference of the case, or if it was earlier, the date of dismissal, an amount equal to the greatest of —

(i) 104 times the amount of that remuneration, determined on a weekly basis,

(ii) 104 times the amount, determined on a weekly basis, which the complainant would have received at that date but for the act of discrimination or victimisation concerned, or

(iii) € 40,000,

or

(b) in any other case, € 13,000.

In the instant case, the Court has to determine what compensation is appropriate for the ‘effects of the discrimination’ , subject to a limit of 104 weeks’ pay.

This is rendered slightly more difficult as there is no lost income involved that can be identified due to the discrimination. However, the Court is clear that the discrimination had consequences for the Complainant in lost status and down-grading within the organisation.

The Court has determined that there was not a discriminatory dismissal in this case. If it had decided that there was, there would have been a strong argument for awarding the maximum amount allowable. Discrimination against a worker due to pregnancy is a particularly egregious breach of the Acts and if it resulted in dismissal then the Court would have to reflect the seriousness of that.

While the actions of the Respondent did not lead to a dismissal, there is no doubt that they damaged the relationship between the parties and undermined the confidence of the Complainant in her employer. This, in turn, triggered a series of events that culminated in the ultimate rupture of that relationship.

While this may not have justified the Complainant’s resignation, undeniably, it caused her great distress and damaged the working relationship. The fact that this discrimination happened during the Complainant’s maternity leave is a cause for particular concern, which must be reflected in the level of compensation.

In assessing the level of compensation to be awarded, the Court has regard to the observations in the case ofCase 406/06 Paquay v. Societe d’architectes Hoet +MinneSPRL (2007) ECR 1-8511that the requirements of redress should ‘guarantee real and effective judicial protection and have a real deterrent effect on the employer’.

The Court cannot be satisfied that anything less than one year’s salary would meet these requirements and, accordingly, the Court determines that the appropriate amount of compensation payable from the Respondent to the Complainant is €70,000. The Respondent is directed to pay this amount to the Complainant.

Summary of outcomes.

1. Complaint of Harassment.

The Complainant’s appeal is not upheld.

Determination.

The Decision of the Adjudication Officer is upheld.

2. Complaint of Discriminatory DismissalThe Complainant’s appeal is not upheld

Determination

The Decision of the Adjudication Officer is upheld.

3. Complaint of Victimisation.  The appeal of the Respondent is not upheld.

The appeal of the Complainant is upheld.

Determination

The decision of the adjudication Officer is varied.

4. Complaint of discrimination.

The appeal of the Respondent is not upheld.

The appeal of the Complainant is upheld

Determination

The decision of the Adjudication Officer is varied.

	Signed on behalf of the Labour Court
	Tom Geraghty
CO'R	______________________
21 February	Deputy Chairman