Complainant

Respondent

Parties

Martina  Palmer

Kilcormac Development Association Limited

Representatives

  Self

Deirdre Gavin HR Consulting

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00035234-002

13/03/2020

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

CA-00035234-003

13/03/2020

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

CA-00035234-004

13/03/2020

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

CA-00035234-005

13/03/2020

The Complainant was a CE Scheme participant and commenced working for the Respondent on the 21 May 2018.  Her employment ended on 24 January 2020.

Her duties were in relation to preparing meals for the Meals on wheels scheme. This involved washing dishes and preparing a list of food required/dispatched.  She was not involved in cooking food per se.

She received a gross pay of €205 and worked 19.5 hours per week. Her days of work were Monday, Wednesday and Friday.

The Respondent was a Community organisation which was governed by a board of volunteer directors.

Two of the Complainant’s former supervisors attended the hearing.  Both assisted the Complainant in presenting her case. They also gave evidence as witnesses both verbally during the hearing and through written statements. They both previously worked for the Respondent and confirmed to me that they both initiated separate legal proceedings against the Respondent which were compromised. 

The Chairman of the Respondent advised that he had made a complaint to the Gardai regarding the behaviour of former employees towards him.

The Respondent submitted that the Complainant's witnesses were biased against the manager and the Respondent.

I was provided with reports into other HR investigations as background information.

It was clear that there had been difficult period of disquiet in the workplace for some time. 

The manager who was referred to in the written submissions did not attend the hearing.  The Respondent advised that this was a board decision, but that she was available to attend any further hearings if I required her attendance. 

The Complainant advised the Respondent of her pregnancy in August 2019 but suffered a miscarriage on 16 September 2019.  She went on sick leave at the time and never returned to the workplace.  She became pregnant again on 25 October 2019 and gave birth in 2020.

CA-00035234-002

The Complainant was on a series of fixed term contracts with the Respondent. She did not receive any written information regarding her contract which was described as a 3rd extension of her contract.

Evidence was given to me that her interim supervisor was working from home for part of 2019 and had no equipment to print off the Complainant's contract.

CA-00035234-003, CA-00035234-004, CA-00035234-005

The complaint form indicated a claim of discrimination on grounds of gender and family status. The date of most recent discrimination was stated as 17 September 2019.

The Complainant gave evidence that she booked a day off work on 29 July 2019 but went to the workplace to borrow a crate.  She was accompanied by her young daughter. While in the workplace she was approached by the manager who queried why she was not at work.  She described how the manager proceeded to verbally attack her. The Complainant was upset and embarrassed and her daughter was also upset.

Because of separate ongoing issues in the workplace, the Complainant did not have a line manager or supervisor at the time.

On 12 August 2019, the complainant decided to submit a formal complaint about the incident of 29 July 2019. I was provided with the written statement and an email to Respondent Chairperson attaching the statement. 

The Complainant explained that she had previously notified the Respondent of an incident of intimidation in September 2018 with the same manager. She had not received any response to that notification.

The Complainant explained that she suffered from panic and anxiety attacks and she informed her supervisors of this. 

She submitted that the Respondent exploited young girls who participated in the CE scheme. 

The Complainant explained that her hours of work were 8:30 AM to 3.00 PM, however she had to work until 4.00 PM for at least two months due to a shortage of staff. She explained that when she left work on one occasion at 3.00 PM she was told by the manager that that was "not good enough".

The Complainant informed another member of staff that she was pregnant at the end of August 2019. No risk assessment was carried out by the Respondent. She accepted that the Company Secretary verbally advised her not to lift anything heavy. 

She submitted that the manager sent her up a dangerous stairs to an attic in the Respondents building on a daily basis.  She had to take heavy plates and trays to the attic to store them.

The Complainant explained how the kitchen in which she was working was very hot and she raised this with her supervisor at the time. The manager had requested the shutters in the kitchen to be closed as the staff were involved in “too much chatting”. 

The Complainant gave evidence that the manager had also degraded her in front of other staff and referred to her mental health issues. The Complainant had been honest with the Respondent about her mental health struggles from her initial interview at the start of her employment. 

The Complainant suffered a miscarriage on 17 September 2019.  She went on sick leave. She felt the Respondent was indifferent to her loss.  She had no contact at the time from her employer.  Towards the end of October 2019, she discovered she was pregnant again. She was terrified about losing her baby and was concerned about her working conditions. She remained on sick leave.

From November 2019 she had a new CE supervisor. He contacted her and asked her to come to the workplace. He asked her to put in a letter of resignation. The Complainant was shocked with this and had never considered resigning. She had thought about going back to work as she needed the top up payment of €20.00 per week to her social welfare that she received by being on the CE Scheme.  She suffered a panic attack at this request to resign.

CA-00035234-002

The Respondent case is that the Complainant's second CE contract ceased on 30 August 2019. A third CE contract was sanctioned by the Department of Enterprise and Social Protection to run from 2 September 2019 to 28 August 2020. The Respondent acknowledged that the Complainant did not receive a written copy of her contract extension before she started her absence on 16th September 2019 due to a timing delay with the process and a temporary gap between CE Supervisor placements.

CA-00035234-003, CA-00035234-004, CA-00035234-005

The Respondent set out that the Complainant was employed under a CE scheme as a catering assistant. It explained that part of her duties involved assisting preparing the meals on wheels food service which provides over 60 meals three times a week to elderly members of the community. It submitted that the meals were prepared in a Grade 2 category kitchen which is a higher specification and regulated kitchen than a kitchen in a restaurant or café. The kitchen was run by a qualified chef.

It explained that the structure of the employment and reporting relationship.  The Respondent had a manager who was responsible for the Community centre and which was a sub- sponsor of the CE scheme and reported to the board of directors of the Respondent.

As the sub- sponsor the manager prepared work plans for the different participants, managing their day-to-day activity and liaised with the CE supervisor if there were any specific issues with the CE participants.

The Respondent submitted that they received no record of any complaint from the Complainant either formally or informally in relation to any incident or form of discrimination on 28 August 2019. They had not been given the opportunity to investigate any concerns of the Complainant under their Bullying and harassment policy or their Grievance policy.

The Respondent confirmed that the Complainant did inform the then Company secretary of her pregnancy and he verbally discussed the possible safety risks with her and advise her accordingly. The Respondent accepted that there was no written assessment carried out at the time as the Companies Secretary believed that the Complainant was satisfied with the outcome of their conversation.

The Respondent submitted that the Complainant was not authorised to enter the attic space as confidential information was stored there. It submitted that the manager refuted that she sent the Complainant to the attic to clean it.

The Respondent maintained that the Complainant never raised her concerns with using the attic stairs at any time during her participation on the CE scheme.

The Respondent explained that from 17 January 2020 the Complainant transferred to a social welfare illness benefit payment until she was ready to go back to work on the CE scheme. The Respondent explained that it could not continue to pay the Complainant if she was not completing her 19.5 hours on the scheme.

The Complainant's CE supervisor gave evidence that when he took over the role the Complainant had been on leave for some time. He tried to contact her by phone. An agreement was made that she would return to the workplace on 2 January 2020. She did not return, and the witness communicated with her by email. He explained that the Complainant informed him that she would transfer to a social welfare illness benefit and asked for a letter stating the last day that she would be paid on the CE scheme.

The Respondent referred to the Code of Practice on Bullying. It submitted that the Complainant never raised any concerns or submitted any complaint whether formal or informal to either her supervisor or any board member of bullying by the manager. It further submitted that the Respondent were not given the opportunity to investigate any issues or deal with any concerns she may have had. It strongly refuted her claim that she was discriminated on the grounds of gender or family status.

CA-00035234-002

The Complainant has claimed that the Respondent failed to provide her with a written statement of his terms and conditions of employment contrary to Section 3 of the Terms of Employment (Information) Act, 1994.

I find that the Respondent has failed to establish or provide any documentary evidence to confirm that the Complainant was provided a written contract or statement of his terms and conditions in relation to this third period of employment. Accordingly, I find that the Respondent has contravened Section 3 of the Act and that the complaint is well founded.

CA-00035234-003

Anti-discrimination law is based on prohibiting differences in treatment based on the discriminatory grounds set out in the Employment Equality Acts. 

Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination. It requires the Complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination in relation to her.   If she succeeds in doing so, then, and only then, is it for the Respondent to prove the contrary. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of “sufficient significance” before a prima facie case is established and the burden of proof shifts to the Respondent.

In deciding on this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the Complainant.   It is only where such a prima facie case has been established that the burden of proving there was no infringement of the principle of equal treatment passes to the Respondent. The Labour Court elaborated on the interpretation of Section 85A in the case of Melbury v. Valpeters where it held that Section 85A:

 "…. provides for the allocation of the probative burden in cases within its ambit. This requires that the Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts, which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.”

Section 6(1) of the Employment Equality Acts provides that 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)…..”. Section 6(2)(a) of the Acts defines the discriminatory ground of gender as follows – “as between any 2 persons …. that one is a woman and the other is a man”. Section 6(2)(c) of the Acts defines the discriminatory ground of family status as follows – “as between any 2 persons …. that one has family status and the other does not”.

In reaching my decision I have taken into account all of the evidence, written and oral, submitted by the parties.

Conditions of Employment

The first element of the Complainant’s complaint which I must consider relates to the claim that she was subjected to discriminatory treatment on the grounds of gender and family status in relation to her conditions of employment, particularly in relation to

(a)    Her requirement to work additional hours over and above her contractual hours

(b)    Her requirement to climb a stairs to the attic

(c)     The closing of shutters in the kitchen during April – May 2019

(d)    The failure to carry out a pregnancy risk assessment

The Complainant has claimed that the Respondent employed a male chef and that he was not treated in the same way that she was.  This was her comparator.

Having considered the totality of the evidence adduced, I have mainly found the Respondent’s evidence in relation to this matter to be more compelling. I am satisfied that the Complainant has failed to establish facts from which it could be inferred that persons of a different gender or family status were treated more favourably than her in relation to the three conditions of employment

(a)    Her requirement to work additional hours over and above her contractual hours

(b)    Her requirement to climb a stairs to the attic

(c)     The closing of shutters in the kitchen during April – May 2019

during her period of employment.

The Complainant has failed to adduce any significant evidence to support her claims that the alleged treatment was discriminatory on the grounds claimed.  In her written submission she set out

“I stayed extra hours to make sure that he (the chef) is on (sic) less pressure”.

This indicated that she volunteered for these hours and this was part of the Respondents submission.  The closing of the shutters affected everyone in the kitchen including the chef and no evidence was presented to me to link the requirement to climb the attic stairs to her gender or family status. 

In relation to the

(d)     The failure to carry out a pregnancy risk assessment

The Safety, Health and Welfare at Work Act 2005 and the Safety, Health and Welfare at Work (General Application) Regulations 2007 require that all workplaces carry out a risk assessment of all hazards in the workplace. This assessment also requires an examination of risks to which a pregnant employee is exposed, how often the exposure occurs and for how long. If there are specific risks to the pregnant employee, the employer must adjust the employee’s working conditions or her hours of work, or both, or the employee should be provided with suitable alternative work.

The Pregnancy Directive (Directive 92/85/EEC) provides a comprehensive legal framework in which special protection is afforded to the health and safety of pregnant women in employment.

Under Article 19(1) of Directive 2006/54, Member States are to take such measures as are necessary, in accordance with their national judicial systems, to ensure that, when persons who consider 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 must be for the defendant to prove that there has been no breach of the principle of equal treatment.

The issue of the requirement for a pregnancy risk assessment was considered by the Court of Justice of the European Union (CJEU) in the case of Eida Otero Ramos v Servicio Galego de Saude (2018) ECLI:EU:C:2017:789

The Court of Justice held:

1. A general assessment of a worker’s role does not meet the requirement to carry out a risk assessment under the directive to improve the health and safety at work of pregnant and breastfeeding workers.

2. Where an employer breaches the obligation to carry out a risk assessment, this amounts to direct discrimination on the ground that the failure amounts to less favourable treatment of a pregnant or breastfeeding woman.

3. The burden of proof passed to the employer to prove that the risk assessment had been carried out to the required standard.

As the Respondent itself admits that it did not carry out a written risk assessment and only gave the general advice of “not lifting anything heavy”, there is no record as to how they reached their conclusions or what advice given to the Complainant. Having regard to the foregoing, I find that the Complainant has established a prima facie case of discrimination on the grounds of gender in relation to this condition of employment.  This finding was not rebutted by the Respondents evidence.

 CA-00035234-004

 Discriminatory Dismissal

The Complainant also claims that she was summarily dismissed from her employment on 24 January 2020 after and she was requested to resign from her employment. The Respondent denies that the Complainant was dismissed from her employment on 24 January 2020 or at any stage.  It contended that she could not continue on the CE scheme if she was not attending work as she was required to do so and that she requested to come off the CE scheme and effectively ended the employment relationship herself.

Section 2(1) of the Acts defines dismissal as including:

"the termination of a contract of employment by an employee (whether prior notice of termination was or was not given to the employer) in circumstances 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 .... ".

I accept that the Complainant went through a very difficult time with her miscarriage in September 2019 and had remained on sick leave until January 2020.   

The Complainant emailed her CE Supervisor on the 9 January 2020 and set out

“I will be going onto illness benefit so would it be possible to get a letter off you stating when you are going to stop payment (sic) me from work.  I also need payslips and another letter stating when I started and my finish date as I have to re apply for my medical card”. 

In the Complainant’s own written submission, she set out

“I am unable to come back to work.  I am sure I have outstanding CE Scheme term to finish once I am available.”

While there were outstanding grievance complaints from the Complainant at the time, her then CE supervisor did attempt to ascertain information on the grievances from her.  I don’t believe the Complainant sufficiently engaged with her supervisor to respond to his attempts to clarify the situation.

I found the evidence of the CE Supervisor who dealt with the Complainant in January 2020 more compelling in relation to the events that took place leading to the ending of the employment relationship. 

A Complainant in a constructive discriminatory dismissal case faces a high bar in establishing that it was reasonable for her to resign her employment in response to her employer’s alleged unreasonable conduct and/or breach of contract. A Complainant is expected to exhaust all internal procedures available to her to give the employer an opportunity to address any reasonable concerns she may have before resigning.

I find that the evidence adduced by her supervisor was consistent with the emails between the parties and credible in relation to this matter. I am satisfied that the Complainant’s position was still available to her in January 2020, but she decided of her own volition to resign from her employment to go on illness benefit. Accordingly, I find that the Complainant has failed to establish a prima facie case of discriminatory dismissal.

CA-00035234-005

Harassment

The Complainant also claims that she was subjected to discriminatory treatment on the grounds of harassment in accordance with Section 14A of the Employment Equality Act 1998.

She sought compensation for mistreatment and humiliation she experienced during her work with the Respondent. 

The Complainant must establish is that this complaint comes within the definition of harassment on the gender ground or family ground in the Employment Equality Act 1998 Act.

I find that the Complainant did not produce evidence to link the treatment complained of with her gender and or family status. While the Complainant may have found the behaviour of the manager to her humiliating and intimidating, to constitute harassment it must be on the gender ground or family status ground within the meaning of the Act.  The evidence of the Complainant’s two witnesses was that they too were subject to harassment by the manager.  Their submission was that the CE workers were exploited by her.  The evidence presented alleged a difference in treatment between the CE workers and permanent staff of the Respondent.  Because of this, I find the Complainant has failed to establish a prima facie case of discrimination in relation to this aspect of her complaint.

CA-00035234-002

Complaint under the Terms of Employment (Information) Act 1994

In accordance with my powers under Section 7 of the Terms of Employment (Information) Act 1994, I declare that the Respondent has contravened Section 3 of the Act and that the complaint is well founded.

Therefore, I order the Respondent to pay to the Complainant the compensation in the amount of €820.00 being the equivalent of four week’s pay in respect of the contravention.

CA-00035234-003

Complaint under the Employment Equality Acts

Having investigated the above complaint, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts. I find that:

The Respondent did not discriminate the Complainant in relation to her claimed conditions of employment namely

(a)    Her requirement to work additional hours over and above her contractual hours

(b)    Her requirement to climb a dangerous stairs to the attic

(c)     The closing of shutters in the kitchen during April – May 2019

I find that the Respondent did discriminate the Complainant in relation to its failure to carry out a health and safety assessment in accordance with Safety, Health and Welfare at Work (General Application) Regulations 2007, Part 6, Chapter 2, Protection of Pregnant, Post Natal and Breastfeeding Employees.  This complaint is well founded.  I order the Respondent to pay to the Complainant the compensation in the amount of €5,000.00 being the equivalent of five month’s pay in respect of the contravention.

CA-00035234-004

 The Respondent did not discriminatorily dismiss the Complainant

CA-00035234-005

The Respondent did not harass the Complainant.

health and safety assessment in accordance with Safety, Health and Welfare at Work (General Application) Regulations 2007