Complainant

Respondent

Parties

Emilie  Coudret

Carriganog Racing Limited

Complainant

Respondent

Groom / Stable Rider

Race Horse Training Stables.

Representatives

  Self-Represented

 Thomas Cummins, HR Consultant

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00033490-001

04/01/2020

The Complainant was employed as a Groom/Rider at the Training Stables since the 26th September 2018. The date of the ending of the employment was contested. The Complainant initially maintained that it had been the 30th January 2019 when she had been placed on Health and Safety Leave as a result of her Pregnancy. A later date of the 9th January 2020 was accepted as being the date of her resignation.

The Complainant worked a 40-hour week for a Gross pay of €500 per week.

She alleged Discrimination under the Employment Equality Act,1998 on the Gender, Conditions of Employment, Discriminatory Dismissal and Other grounds.

An extensive written submission supported by comprehensive Oral Testimony was given by the Complainant.

In summary she maintained that her employment had been ended on the 30th January 2019 when she had been asked to leave the Stables on Health and Safety grounds arising from her Pregnancy. She had secured Health and Safety Social Welfare payments until April when she applied for regular Maternity leave payments.

It was important to note that she had to give up her subsidised housing at the Stables when she went on H&S leave. In this context she referred to a letter dated the 16th of January 2019 from the Respondent to South Tipperary Co Council Housing Department which stated

“ Emile Coudret’s employment with Carriganog Racing Ltd ceased on the 10th January 2019”

She took this letter as proof of her dismissal.

No realistic effort was made by the Respondent to seek suitable alternative work for her during her pregnancy despite the Stables having close to 65 plus employees.

Later on, the 29th April 2019 the Department of Social Protection refused Maternity Leave Allowance and demanded repayment of the Health and Safety Leave payments on the grounds that she was not a qualifying employee of the Stables. She had been terminated on the 30th January 2019 according to Revenue Records. During this mid-summer period, coinciding with the birth of her son, the Complainant experienced considerable financial hardship at a time she should have been concentrating on the welfare of her new-born baby.

On the 17th May 2019 she sent an e mail (copy provided) to Ms. NP of the Respondent Payroll Office raising the issue of the non-payments of the Maternity Leave allowances. InOral Testimony the Complainant pointed out that this e mail should clearly have caused the Respondents to at least query the payroll situation. It appeared that no reply was ever received from Ms. NP

At the same time, she engaged in extensive correspondence with the Dept of Social Protection to no avail. She sought and was assisted with considerable support by the Citizens Advice Service. The Citizens Advice officer wrote to the Respondent employer and coupled with correspondence from the DSP an administrative error in the Payroll system in January was identified. When clarified with the Dept of Social Protection the correct Maternity leave payments were made and the demand for a refund of the H &S Protective Leave payments was withdrawn.

She was then, she contended, largely on foot of the WRC UD Act correspondence in September 2019, effectively reemployed by the Respondents. She continued with them until the 9th of January 2020 when, on the ending of her Maternity Leave, she voluntarily resigned.

In frustration with the manner in which she had been treated the Complainant referred an UD Act,1977 claim to the WRC on the 26th August 2019. For record purposes this UD Act complaint was withdrawn on the 29th January 2020 and the Employment Equality Act,1998 complaint, (Adj 23997) first lodged on the 4th January 2020, was continued.

She had, initially, been denied her 2019 Christmas Bonus, was not invited to the Christmas Staff party, both of which actions were symptomatic of how she was subject to Discriminatory treatment.

In final summary, she contended that the manner in which she had been treated by the Respondents during all of 2019 was clearly discriminatory on the Pregnancy Grounds, the Gender Grounds, Conditions of Employment and Discriminatory Dismissal.

The Respondent submitted a detailed written submission and gave extensive Oral Testimony.

In summary their case was that the Complainant had never been dismissed from her employment and all other contentions of Discriminatory treatment lacked any prima facie basis.

In keeping with Blood Stock / Racing industry practice lady Grooms/Riders are placed on H & S Protective leave during their pregnancy. Race Horses are very temperamental animals and the risk of a pregnant lady or indeed any person being seriously kicked by a horse is very high.

The Complainant was placed on H&S Leave in late January and as far as the Respondent was concerned all was normal. E mail and telephone correspondence from the Citizens Advice Service and Dept of Social Protection in August gave rise to the Payroll error being discovered and rectified. E Mail of the 28th August to the Complainant refers. The most unfortunate Payroll error was largely due to the Payroll administrator being unfamiliar with changes in January 2019 to the Government Revenue recording systems. The Respondent apologised for this error on their part and for any miscommunications, missed emails etc that may have arisen earlier in the year.

Why the Complainant e -mail of the 17th May 2019 was missed could only have been due to the Office being exceptionally busy with the Racing season.

The letter to South Tipperary Housing Department (16th January 2019) was discussed by Ms.NP - the author. She had written it at the time in an effort to help the complainant secure Public Housing.  It was not a Dismissal letter rather a good will effort and somewhat flexible with the strict facts to help the Complainant secure housing. She was no longer “employed at the Stable” but still an employee of the Company.

Detailed letters were sent on the 26th September 2019 and the 9th October to the Complainant apologising for the error and confirming that she was still an employee, had always been one and suggesting that she withdraw her UD Act,1977 complaint. The Complainant did not do so and suggested in a letter of the 2nd October 2019 that she was due some “reasonable financial compensation” for the considerable stress and financial strain she had experienced. This was declined by the Respondent.

Matters progressed normally until December 2019 /January 2020 when clarification of the date of the Complainant’s return to work arose. This was clarified, and the Complainant wrote on the 9th January 2020 formally tendering her resignation. The Respondent asked her to reconsider and avail of the Respondent Grievance procedures. The Complainant again confirmed her resignation in a lengthy reply dated the 11th January 2020.

In addition, there were major inconsistencies in her WRC claim forms that would gave rise to serious questions as to the proper time scales of the complaints. The UD Act complaint was clearly out of time. The EE Act,1998 complaint (this case) had an end date of employment of the 30 January 2019 but was claiming Discrimination on the 12th December 2019.

In supporting Legal submission, the Respondents pointed to what they stated was the “irrefutable fact” that the Complainant had never been dismissed and therefore any claim of Discriminatory Dismissal could not arise. The Complainant herself confirmed this by her resignation in January 2020.

Notwithstanding the above factual arguments, the entire balance of Case Law points to the need for the Complainant to raise a proper inference of Discrimination on, in this case, the Gender ground, Conditions of Employment grounds and Discriminatory Dismissal.

None of this could be said to have happened. It was accepted that an unfortunate payroll error had occurred in January 2019. Once discovered it was immediately rectified.

There was no way that this error, which was repeatedly apologised for, could be made out to be a major or any grounds for a Discrimination complaint. No prima facie case, as required by Law, exists.

3:1:        Legal Position.

The Employment Equality Act,1998.

The Law in Employment Equality cases - Employment Equality Act,1998

Sections 2 & 6 Discrimination - Section 85 (A) the Burden of Proof, Legal Precedents

 In an employment Equality case such as here it is necessary to firstly establish certain Legal issues -these being

1.      Is the Complainant covered by the Discrimination provisions of Section 2 and 6 of the Act? in other words, is she eligible to bring a claim?

2.      Is the Complaint within proper Time Limits?

3.      Was she discriminated against, as set out in the 1998 Act?

4.      Was the treatment of the Complainant less favourable than that which would apply to another individual not covered by the Discriminatory ground?

5.      Depending on these answers the Provisions of Section 85 (a) The Burden of Proof then apply. In plain English the onus is on the Employer to prove that no discrimination occurred.

There is significant case law in support of the above points - The starting point would be the decision of the Labour Court in Southern Health Board v Mitchell, AEE/99/E a decision which remains the leading decision on the shifting of the burden of proof. The Court considered the extent of the evidential burden which a claimant must discharge before a prima facie case of discrimination can be made out:

“The first requirement is that the claimant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a 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 if 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.”

Notwithstanding legal precedent all cases rests on their own particular facts and evidence and I will, using the points above, now consider the case.

It is important to note that much of the most pertinent evidence was given by Oral testimony at the Hearing.

3:2         Consideration of the Evidence presented in both Written and Oral Testimony.

The Questions set out above are used as a convenient template.

3:2:1        Was the Complainant legally eligible to bring a claim of Discrimination?

                  Are there proper prima facie grounds?

The Grounds of Discrimination advanced were Gender, Conditions of Employment, Discriminatory Dismissal and Other grounds. These grounds have to be based on facts presented as evidence.

Section 85(A) (1) of the Act is relevant

Burden of proof.

85A.—(1) Where in any proceeding’s 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.

(2) This section is without prejudice to any other enactment or rule of law in relation to the burden of proof in any proceedings which may be more favourable to a Complainant.

(3) Where, in any proceedings arising from a reference of a matter by the Authority to the Director General of the Workplace Relations Commission under section 85(1) , facts are established by or on behalf of the Authority from which it may be presumed that an action or a failure mentioned in a paragraph of that provision has occurred, it is for the Respondent to prove the contrary.

(4) In this section ‘discrimination’includes—

(a) indirect discrimination,

(b) victimisation,

(c) harassment or sexual harassment,

(d) the inclusion in a collective agreement to which section 9applies of a provision which, by virtue of that section, is null and void.

(5) The European Communities (Burden of Proof in Gender Discrimination Cases) Regulations 2001 ( S.I. No. 337 of 2001 ), in so far as they relate to proceedings

3:2:1 (a)          Gender & Pregnancy, Conditions of Employment Grounds

The Complainant was female and was Pregnant. This was not disputed. However, to legally advance a Discrimination case it was necessary to establish that she was treated “less favourably” on the basis that a male and or nonpregnant female would have been treated better than she was.

In relation to the Pregnancy ground the evidence pointed to the fact that she was placed on Health and Safety Leave and the Pregnancy proceed as normal. The necessity of Health and Safety leave, when dealing with thoroughbred Horses, was accepted by both sides. The Complainant queried why no other work was considered for her. The Respondent gave evidence that the place of work was a major Stable and no other work, not bringing the employee into close proximity to Horses, was realistically available.

There was no evidence that anything other than the H & S considerations influenced the Respondent. Considerable Respondent Oral testimony was given on this point.

An issue raised by the Complainant was the requirement that she leave the on-site/ stable employee accommodation while pregnant. This accommodation was heavily subsided by the Employer and the Complainant was required to find alternative accommodation locally. This was an additional cost on the employee as a result of her pregnancy.

The matter was not really considered in detail by either Party in Oral testimony and it did not appear to have been a directly Discriminatory action by the Respondent. The accommodation was on the Stable premises with all the Horse safety issues attached. Remaining there was not really an option.

All other Conditions of Employment were normal save for the fact that an most unfortunate blunder was made in the Payroll office in January. This was the subject of considerable Oral testimony. The Payroll person, Ms. NP, gave evidence that she was new to the Payroll functions and that the Revenue routines had changed from earlier versions. A P45 was now generated automatically by Revenue rather than manually by an employer. This had resulted in the Revenue Systems showing, in error, that the Complainant was no longer in employment which gave rise to the Maternity Payment eligibility problems.

The Respondents admitted that they had made an administrative error but that it was not possible to convert this into a Discriminatory act. They pointed to the fact that, once discovered, the error was immediately corrected, and all payments were made to the Complainant. Taken on the overall balance of evidence the Payroll error was grievous and very upsetting to the Complainant, but it was hard to see how it was legally discriminatory on the ground of her Gender or Pregnancy. It could have happened to any employee, irrespective of Gender, required to take H & S leave for any variety of possible reasons. The effective loss of the e mail of the 17th May 2019 was an equally serious oversight to which the Respondent could only apologise.

The Oral testimony from the General Manager, Mr PO’S, was professional. He was under Oath and subject to cross examination. On balance his version of events seemed credible. Bad administration, mixing up Revenue rules and non-reply to e mails while serious are not in themselves Discriminatory

On balance from a complete review of all the evidence it was hard to see a necessary legal prima facie case of actual fact-based Gender or Pregnancy discrimination or Conditions of Employment being made by the Complainant.

3:2:1 (b)         Discriminatory Dismissal        

The evidence was overwhelmingly that no Dismissal ever took place. The only basis possible was that the Employment relationship was ended by taking the H & S leave in January 2019 with a contended Re employment in August when the Social Protection issues were resolved. The evidence did not support this scenario. All the correspondence from both sides leading up to the Complainant resignation letters in January 2020 – the 9th and confirmation on the 11th January indicated that the employment had continued.

On balance and from a complete review of all the evidence both Written and Oral testimony no employment dismissal ever took place.

Accordingly, a complaint for Discriminatory dismissal cannot have a sound basis.

In her oral Testimony the Complainant had effectively accepted this was the case. Her main complaint at the Hearing and stated desired outcome was one of seeking some form of compensation for the distress and hardship caused by the Payroll error and non-reply to e mails earlier in the year.

3:3          The Burden of Proof.

In a case of this nature the Burden of Proof shifts to the Respondent Employer once a satisfactory prima facie case of discrimination has been set out.

Section 6(2) (A) of the Act is worth noting.

2A) 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.

Once it is accepted that the most unfortunate Payroll error of January 2019 was not, per say, a Discriminatory Act there can be no realistic prima facie case of discrimination.

The Complainant in her evidence repeatedly referred to how badly she had been treated and the numerous obstacles she had had to face in getting her payment situation resolved. Things were not helped by the fact that English was not her native language but once taken on board by the Citizens Advice service were quickly resolved. Her final claim was one of financial compensation for her distress. This was not a prima facie Employment Equality Act ,1998 complaint.

The Employment Equality Act,1998 legal Burden of Proof does not shift to the Respondent.

3:4         Overall Summary

This was a complaint under the Employment Equality Act ,1998.

It was accepted by all Parties that the Complainant had suffered as a result of a Payroll and Revenue Systems error. This was resolved once discovered and all entitlements properly paid. This was not good administration but not an act of discrimination.

In complete Adjudication review the evidence did not allow a case of Discrimination, on a legal prima facie basis to be established.

The complaint is Not Well Founded.

Equality Grounds of Pregnancy, Gender, Conditions of Employment, Discriminatory Dismissal. Payroll Errors / Revenue records.