ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00029248
Parties:
| Complainant | Respondent |
Parties | Aishling Dunne | Lynn Deegan trading as Finnstown Childcare |
Representatives | David Byrnes BL Karen Ruane Ruane & Co Solrs. | Michael McNamee BL Ryan McAllister ARAG Legal Protection Ltd |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00039005-002 | 02/08/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00039005-003 | 02/08/2020 |
Date of Adjudication Hearing: 20/01/2022 and 29/03/2022 and 30/03/2022
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Procedure:
In accordance with Section 79 of the Employment Equality Acts, 1998 (as amended) a complaint has been referred to the Director General of the Workplace Relations Commission who has in turn deemed it appropriate that the complaint be investigated with any appropriate and/or interested persons to be provided with an opportunity of being heard. In these circumstances and following a referral by the said Director General, of this matter to the Adjudication services, I can confirm that I am an Adjudicator appointed for this purpose (and/or an Equality Officer so appointed). I affirm I have fulfilled my obligation to make all relevant inquiries into the complaint. I have additionally and where appropriate heard the oral evidence of the parties and their witnesses and have taken account of the sworn evidence tendered in the course of the hearing as well as any written submissions disclosed in advance of the hearing and in the course of the hearing (and which have been opened to me).
Where a person believes they have been discriminated against on one of the nine recognised grounds or in any other way has been treated unlawfully under the Employment Equality Acts they must write to the party that they believe has treated them unlawfully using the EE2 form asking for relevant information to determine their course of action. The proposed Respondent may reply by way of form EE3.
The Complainant herein has referred a matter for adjudication as provided for under Section 77 of the 1998 Act (as amended). In particular the Complainant (as set out in her Workplace Relations Complaint Form dated 2nd of August 2020) seeks redress from the Respondent in circumstances where she claims her Employer behaved unlawfully and discriminated against her in the course of her employment wherein she says that she was treated less favourably than another person has or would have been treated in a comparable situation on the grounds of her Family Status (as detailed in Section 6 of the 1998 Act (as amended)).
The Operative Section is Section 6 of the Employment Equality Act 1998 where :-
Sub Section 6 (1) For the purpose of this Act…discrimination shall be taken to occur where…
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 in subsection (2) (the “discriminatory grounds”).
Section 6 (2) As between any 2 persons the discriminatory grounds .. are…
(c) That one has a family status and the other does not (the “family status ground”)…
Also potentially relevant is the assertion in 6(2A) which specifically deals with pregnancy related issues and which states:
“Without prejudice to the generality of subsections (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.”
It is accepted that the entire period of pregnancy and maternity leave constitutes a special protected period. Article 10 of the EU Pregnancy Directive prohibits the dismissal of workers who are on maternity leave save for in exceptional circumstances and require an employer to cite “duly substantiated grounds in writing”. It is not sufficient for the employer to simply aver that the dismissal during pregnancy was for other, unrelated, reasons.In the case of Assico Assembly Ltd -v- Corcoran EED 033/2003 the Labour court found that:
“Where the employee is dismissed while pregnant or on maternity leave, both legislation and case law states that the employer must show that the dismissal was on exceptional grounds not associated with her pregnancy, and such grounds, in the case of dismissal, as a matter of law and in the case of discrimination as a matter of good practise, should be set out in writing.”
In the event that the Complainant is successful, it is open to me to make an award of compensation for the effects of the acts of discrimination and/or of the victimisation. I can also give direction on a course of action which might eliminate such an occurrence in the future (per Section 82 of the 1998 Employment Equality Act).
Guidance on quantum in relations to awards of discrimination has been given by the Labour Court in the case of Lee t/a Peking House -v- Fox EED036 :
“Effects which flowed from the discrimination which occurred. This includes not only financial loss suffered by the Complainant arising from the discrimination but also the distress and indignity which she suffered in consequence thereof”.
Generally speaking, in employment equality issues the complainant has little or no direct evidence of discrimination. EU law recognised this and has adopted a burden of proof in all Equality Directives which recognises such difficulty. Article 19(1) of the Recast Directive (Directive 2006/54) provides as follows –
“….when persons who considered themselves wronged because the principle of equal treatment has not been applied to them establish, before a court or other competent authority, facts from which it may be presumed that there has been direct or indirect discrimination, it shall be for the respondent to prove that there has been no breach of the principle of equal treatment.”
This has been transposed into Irish law by section 85A of the Employment Equality Acts:
“…in any proceedings facts are established by… a complainant from which it may be presumed there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.”
The Labour Court’s (and WRC’s) approach to this issue and the test for applying section 85A (burden of proof) is well settled in a line of decisions of both bodies starting with the Labour Court’s Determination in Mitchell v Southern Health Board ([2001] ELR 201):
“..the claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination. It is only where these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there is no infringement of the principle of equal treatment.”
The law provides robust protection to women who have been dismissed for any reason rating to pregnancy birth and maternity leave, in accordance with it’s obligations under EU Law.
In addition to the above and in accordance with Section 41(4) of the Workplace Relations Act, 2015 and following the presentation by an employee of a complaint of a contravention by an employer of an Act (or Acts) contained in Schedule 5 of the Workplace Relations Act of 2015, made to the Director General and following a referral by the said Director General of this matter to the Adjudication services, I can confirm that I have fulfilled my obligation to make all relevant inquiries into the complaint. I have additionally and where appropriate heard the oral evidence of the parties and their witnesses and have taken account of the evidence tendered during the course of the hearing.
In particular, the Complainant herein has referred the following complaint:
The Complainant has additionally referred a matter for adjudication as provided for under Section 12 of the Minimum Notice and Terms of Employment Act, 1973 and the referral has been made within six months of the date on which this claim accrued to the Complainant. In particular the complaint is that the Employee did not receive the appropriate Statutory Minimum notice (or payment in lieu) on termination of the employment and as outlined in Section 4 of the Minimum Notice and Terms of Employment Act 1973. Where the Adjudicator finds that the section was contravened by the Employer in relation to the Employee who presented the complaint, the Adjudication officer can direct that the employer concerned pay to the Employee compensation for any loss sustained by the Employee by reason of the contravention
Background:
This is a claim seeking redress for discriminatory treatment in the workplace. It is brought on foot of a Workplace relations complaint form dated 2nd of August 2020 . This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (miscellaneous Provisions) Act 2020 and SI 359/2020 which said instrument designates the Workplace Relations Commission as a body empowered to hold remote hearings pursuant to Section 31 of the Principal Act. The said remote hearing was set up and hosted by an appointed member of the WRC administrative staff. I am satisfied that no party was prejudiced by having this hearing conducted remotely. I am also satisfied that I was in a position to fully exercise my functions and I made all relevant inquiries in the usual way. In response to the Supreme Court decision in the constitutional case of Zalewski -v- An Adjudication Officer and the Workplace Relations Commission and Ireland and the Attorney General [2021 ]IESC 24 (delivered on the 6th of April 2021) I can confirm that the within hearing was open to the public so as to better demonstrate transparency in the administration of Justice. I have additionally informed the parties that pursuant to the Workplace Relations (Miscellaneous Provisions) Act, 2021 coming into effecton the 29th of July 2021 and in the event that there is a serious and direct conflict in evidence between the parties to a complaint then an oath or affirmation may be required to be administered to any person giving evidence before me. I confirm that I have administered the said Oath/Affirmation as appropriate. It is noted that the giving of false statement or evidence is an offence. |
Summary of Complainant’s Case:
The Complainant was fully represented. The Complainant made an Affirmation as appropriate. I was provided with a comprehensive submission dated the 3rd of September 2021. The Complainant additionally relied on the submission outlined in the Workplace Relations Complaint Form. I was provided with supplemental documentary evidence – such as What’s Apps, text messages etc., in support of the Complainant’s case. The Evidence adduced by the complainant was challenged as appropriate by the Respondent’s Representative. The Complainant says she was discriminated against in the workplace when she was being treated in a hostile and uncaring way by reason of the fact (she says) or despite the fact that she was a pregnant employee. The Complainant also alleges that she was discriminated against at a time that she was out on her maternity leave when her employment was unexpectedly terminated. Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute. |
Summary of Respondent’s Case:
The Respondent also had representation at this hearing. The Respondent provided me with a written submission prior to hearing. I have additionally heard from a witness for the Respondent. All evidence was heard following an Affirmation/Oath. The Respondent was cross examined by the Complainant representative. The Respondent rejects that there has been Discrimination either before or after the Complainant went out on her Maternity Leave. Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute. |
Findings and Conclusions:
I have carefully listened to the evidence given by both sides in this matter. For the purposes of these proceedings the Complainant commenced her employment in 2019. She had previously worked for this Employer but there had been a short break in service when the Complainant looked at other options. The Respondent owned and operated a creche and childcare facility which catered to up to 27 children. There were five employees with the Respondent herself acting as the overall manager responsible for every aspect of the business. The Complainant gave detailed personal evidence concerning the efforts she was going through to try and get pregnant. By early 2019 she and her husband were on their fourth expensive round of IVF which was being conducted in Prague. The Complainant described the emotional and psychological impact of this treatment. In giving her evidence it was clear to me that this had been a stressful period for the Complainant who was sensitive to the possibly brusque manner of her Employer for example when she was trying to sort out annual leave which may or may not involve unscheduled trips to Prague. The Respondent asserts that the Respondent still had a business to run and needed to plan which I accept is not unreasonable. I also note that the Complainant did not say she found the manner brusque or insensitive. The Complainant was overjoyed to be told that she was pregnant with her first baby in May of 2019. At the time she wrote a message saying of her colleagues and workplace that they would be the army around her. Her Employer even bought her a teddy. However, in her evidence the Complainant also says that there was a marked change in the Employer’s attitude towards her. The Complainant surmises that this was brought about by reason of the fact that the Complainant needed to put herself and her baby first and her job and the workplace second. Heretofore, she says, she was the Employee upon whom the Respondent relied on the most. She was constantly called upon to make herself available to cover other employees calling in with family emergencies. The Complainant believes that as she was (at that time) childless, there was an assumption that she was more available. The Complainant confirmed that her relationship with the Employer had always been excellent and she was happy to step up. However, by mid-2019 this was no longer the case. The Complainant was unlucky enough to suffer with severe bouts of morning sickness that left her nauseated and exhausted. She gave evidence that the Respondent could and should have done more to assist in the workplace at this time. The Respondent continued to operate the business in a slightly hands-off way relying on her trusted staff to keep things running smoothly. The Complainant was critical of this, citing her failure to be present for the opening up of the creche and always running late when her presence was needed. The Complainant did not say anything to her Employer and I cannot find prima facie evidence of any discrimination during this period. Ultimately the Complainant went out on certified sick leave for five or six weeks – returning to the workplace at the end of July 2019. Again, the complainant gave evidence of being tired and being asked to work long and sometimes inconvenient hours. I did not form the impression that the hours being asked of her were any different to other full-time colleagues and I do note that the Complainant turned down a suggestion that she might like to go part time. I have been advised that one employee had just gone part time which had a knock-on effect on all their hours. It was not that the complainant was working more hours she was working less convenient hours. She was constantly exhausted but does not seem to have specifically raised an issue with her employer. I also have to accept that the many and varied messages between the Complainant and Respondent which were opened to me were friendly, even warm. The Complainant accepted that she never pushed back on any of the perceived slights in the workplace. At most she complained of tiredness. The Respondent asserts that she was unaware that there was some bigger issue at play as she was never advised that there was. The Complainant described particular friction over a weekend away with her girlfriends in early September. On her return she was notified by her Employer that she was required to work a full day on the next Wednesday - which was not her normal pattern. She was upset at this direction being given at short notice and the manner in which it was given. When challenged on this by the Respondent Representative the Complainant accepted that it was her subjective view that the Complainant was being hostile and that she knew that the Respondent had a prerogative to manage her business in the first instance. It also seems that the Complainant might have been upset about a row on her holiday which the Respondent remembered her telling her about. The Complainant described a wall diary in the Respondent’s office. The Complainant had noticed that all her absences were highlighted in a way that none of the others were. It was as if she had become an inconvenience to the Employer. The Respondent rejects this and indicated it was boldly highlighted to help remind the Respondent of what was due to the Complainant before her planned departure. I accept that this cannot be taken to be an act of discrimination and certainly the Complainant never raised this with her Employer. The Complainant felt that her medical appointments and ante natal appointments were all done or would need to be done on her own half days so as to avoid impacting the workplace. The Complainant went to her own GP at the beginning of October 2019 and he agreed that she should take a two-week period out of the workplace as she was stressed and he certified her out on pregnancy related sickness. It is noted that the Dr did not describe it as work related stress. In fact, the Complainant did not return to the workplace and her maternity leave started in the January of 2020 with her healthy baby arriving in February 2020. It is noted that at this time the Complainant through her submissions …”feared against further and continued confrontations with her employer.” This allegation was hotly challenged by the Respondent through her Representative and I do have to accept that there is no evidence of ongoing confrontations or situations which were fearful to the Complainant. The Complainant was resentful of the fact that she had felt that she had to leave the workplace as early as she did. She blames the Respondent for taking that period of time from her. She did not enjoy the interaction with her colleagues or have a workplace baby shower. When the baby was born she did put the news up on the What’s App group. The Complainant knew that she would be returning to the workplace in and around the 10th of August at the expiration of her maternity leave and any annual leave she was due. By now, of course, the country was in the grip of the Covid pandemic. The Complainant communicated with the Employer on the 1st of July 2020 about her return and was advised that the workplace would be opening on the 10th of August and that there may be a requirement for training in the Covid protocols. By now, the Complainant confirmed that she was looking forward to returning to the work place which contradicts the fear of confrontations earlier referenced. Then, quite out of the blue and within 24 hours of the previous messaging, the Complainant learned that the Respondent facility was not re-opening and was in fact closing down after 22 years in operation. The Complainant was advised of this fact by a mother whose children she had cared for in the course of her employment. The Complainant was devastated to learn this through a third party especially since she had only just been advised by her Employer that her plan to return to work on August 10th was perfect. In fact, it soon became obvious that the plan to shut down the premises had been in place for a good few weeks at that time and she had simply not been notified. The Complainant learned that her colleagues had all been previously notified. On the 20th of July the Complainant broke her silence and contacted the Respondent indicating that she knew that the Creche was closing and raising issues concerning unpaid leave. In her evidence the Respondent stated that she had vacillated between whether she would or wouldn’t reopened. The level of training and workplace adaptions was daunting to her, and the government support on offer was conditional on certain factors she felt unable to guarantee. She was sounding out her staff- other than the Complainant. She had taken deposits from clients and she didn’t want to deplete monies if she wasn’t opening. The final decision was made in the space of a few hours and just after she had told the Complainant she would be opening. The Respondent has conceded that not telling the Complainant that her job was, in effect, to be made redundant was wrong. I do not think it was vindictive, I think it was careless. I note that Regret has now been expressed though this has been very late in coming. In her evidence the Respondent stated that she …didn’t handle things well and we’re all here today because of it. I accept that the Respondent telling/texting the Complainant (back in July of 2020) that she had…”other staff and parents who’s well being is my priority right now” demonstrated a profound lack of sensitivity and understanding. I am not sure that this sentence alone was not what tipped the Complainant into issuing this complaint. To my mind it treats the Complainant as a non-person in circumstances where the only thing distinguishing the Complainant from her colleagues is the fact that she is out on protected maternity leave. For the avoidance of doubt, I do not accept that the Employer can hide behind the notion that the Complainant could not and should not be notified of any workplace issues while out on maternity leave. It is universally accepted that new mothers should not be hassled with day to day queries and communications from the workplace, but the fact that a workplace is closing down should not be concealed. It is a fundamental change in circumstances such that the Employee needs to know it as soon as it arises. This was not a discriminatory dismissal. This was a lawful termination by reason of closure and redundancy – which of course does not attract Statutory payments by reason of he short length of service. I do however accept that the Complainant was discriminated when she was excluded from workplace notifications which were to have a huge impact on her future. There was a dispute between the parties as to the significance of the evidence given (out of turn) by co-employee CS. To my mind this witness’s evidence was unsatisfactory for both sides. If accepted, it had the unfortunate effect of making the Complainant look duplicitous and also made the Respondent look as if she was wilfully avoiding TUSLA scrutiny. I do not doubt the integrity of the witness’s CS account, but I do not think that what she had to say materially effected the outcome of this matter and I will not attach any weight to same. Regarding the payment in lieu of Minimum Notice, this was conceded on the first day of evidence and I am assuming it has already been paid though will make the appropriate decision under this legislation. I understand the Complainant was paid any other money due and owing though this took some time. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.
Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 CA-00039005-002 the Complainant is entitled to one weeks payment in the amount of €470.00 in lieu of Notice. Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 CA-00039005-003 The Complainant was discriminated against on the grounds of her Family Status. This impacted negatively on the Complainant though there is limited financial loss. I order compensation for the effects of discrimination in the sum of €4,000.00 |
Dated: 18th July 2022
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Key Words:
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